2402892 (Refugee)

[2024] AATA 2036

2402892 (Refugee) [2024] AATA 2036 (24 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402892

COUNTRY OF REFERENCE:                   New Zealand

MEMBER:Jane Marquard

DATE:24 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 24 April 2024 at 12:56pm

CATCHWORDS
REFUGEE – protection visa – New Zealand – long residence from young age and passport expired – criminal convictions, imprisonment, special category visa cancelled and immigration detention – conviction and cancellation not related to protection claims and disregarded in part – parents from third country – not necessary to consider applicant’s eligibility for citizenship there – fear of harm from gangs – criminal history – altercations with New Zealand gang members in Australia and associations with but not membership of Australian gangs – some New Zealand gang since returned to New Zealand – passage of time and no recent interactions – no fear of being sought out, but of bumping into, or being pressured to join – fear of harm not raised during review of decision to cancel special category visa – emotional and social difficulties, including family and children – country information – effective protection measures – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (2), 5LA, 32, 36(2)(a), (aa), (2A), (3)-(7), 65, 82(1), (8), 189, 501CA(4)
Migration Regulations 1994 (Cth), r 5.15A, Schedule 2, cl 444.511

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v Khadgi (2010) 190 FCR 248
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

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. The applicant, who is a citizen of New Zealand, has sought review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2024 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

BACKGROUND TO THE REVIEW

2.  The applicant was born in [Year] in New Zealand.

3.  He travelled to Australia [in] November 1993 at the age of [Age] with his family on a Special Category – Subclass TY-444 visa. The criteria for a Special Category visa are set out in s 32 of the Act and reg 5.15A of the Migration Regulations 1994 (Cth) (the Regulations).1 The Special Category visa is a temporary visa permitting the holder to remain in Australia while the holder is a New Zealand citizen: cl 444.511 of Schedule 2 to the Regulations. This visa was introduced by the Migration Reform Act1992 (Cth), which came into effect on 1 September 1994. The visa is for an indefinite period but ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss 82(1) and 82(8) of the Act. The visa was cancelled by the Department of Home Affairs (the Department) on 14 June 2022. The applicant made a request to revoke that cancellation, and on 31 July 2023 a decision was made under subsection 501 CA (4) not to revoke the mandatory cancellation of the visa. The applicant sought review of that decision before this Tribunal differently constituted. The Tribunal differently constituted affirmed the decision of the Department on 12 October 2023.

4.  The applicant has not visited New Zealand since he came to Australia in 1993.

5.  The applicant married in Australia and has three children with his now ex-wife. He has a daughter (born [year]) and twin boys (born [year]). He also has another daughter with a later partner, who is aged [Age].

6.  In his application for the visa, the applicant stated that he was convicted [in] December 2020 of domestic violence and received a sentence of three and a half years imprisonment. He was imprisoned from [December] 2020 to 28 February 2023. Upon release he was detained on 28 February 2023 under s 189 of the Act and has been in immigration detention since then.

7.  The applicant applied for the visa the subject of this review on 29 January 2024. He claims that he would be persecuted by gangs if he returned to New Zealand. A delegate of the Department refused to grant the visa on the basis that there is effective state protection in New Zealand.

SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW

8.  The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.

[1] See Migration Regulations 1994 (Cth), Sch 1, item 1401; Sch 2, cls 866.1 to 866.611.

9.  Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions.

[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954).

[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

10.  For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]

[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.

11.  The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Regulations. Extracts of the relevant legislative provisions are set out in Attachment A to this decision.

12.  An applicant must establish that they:

·are a refugee (the refugee criterion);[5] or

·qualify for complementary protection (the complementary protection criterion);[6] or

·are a member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]

[5] Section 36(2)(a) of the Act

[6] Section 36(2) (aa) of the Act.

[7] Sections 36(2)(b) and (c) of the Act.

Refugee criterion

13.  Section 36(2)(a) of the Act 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.

14.  A person is a refugee if, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.

15.  Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.

16.  A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).

17.  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-5LA of the Act, which are extracted in Attachment A to this decision.

Complementary protection criterion

18.  If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

19.  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) of the Act, which are extracted in Attachment A to this decision.

The applicant must satisfy the statutory elements

20.  It is the responsibility of the applicant to specify all particulars of the 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 any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510. As the applicant was unrepresented at the Tribunal hearing, the Tribunal provided an overview of the refugee and complementary protection criteria to the applicant and invited him to provide any information or evidence he would like to in relation to his matter.

EVIDENCE TAKEN INTO CONSIDERATION

21.  The Tribunal has taken into consideration the application for the visa and supporting documents, Departmental records, evidence before this Tribunal and independent sources about New Zealand.

22.  Before the Tribunal hearing, the applicant was invited to provide written submissions or documents, but none were provided. The applicant appeared before the Tribunal on 3 April 2024 to give evidence and present arguments.

23.  The evidence and material before the Tribunal is referred to where relevant in the findings. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[8]

[8] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

24.  At the Tribunal hearing the Tribunal noted that in the application for the visa, it was stated that the applicant was convicted [in] December 2020 of domestic violence and received a sentence of three and a half years imprisonment. At the Tribunal hearing, the applicant confirmed that he had been imprisoned from [December] 2020 to 28 February 2023. He was detained on 28 February 2023 under s 189 of the Act and has been in immigration detention since then. He also referred to earlier criminal convictions (discussed later in this decision).

25.  As discussed with the applicant at the Tribunal hearing, information about the applicant’s criminal convictions and the cancellation of his Special Category Class TY visa were before the Tribunal, including the decision of this Tribunal differently constituted dated 12 October 2023 to affirm the decision not to revoke the cancellation of his Special Category Class TY visa (the Tribunal cancellation decision). The information about his criminal convictions and cancellation was provided by the applicant to the Tribunal and he consented to the Tribunal viewing the Tribunal cancellation decision. As discussed with the applicant at the Tribunal hearing, the criminal convictions and information in the Tribunal cancellation decision were relevant to understanding his migration history and connections to gangs in Australia but were not otherwise relevant to his claims for protection. He was asked if he wished to comment on the Tribunal cancellation decision and he said that he had nothing further to say about it. The Tribunal has disregarded the information about the applicant’s criminal convictions and cancellation in considering whether he meets the criteria for the visa, except as they are relevant to his migration history and claims of having associated with bikie gangs.

FINDINGS AND REASONS

26.  The Tribunal must determine whether the applicant faces a real chance of serious harm in New Zealand if he were to return in the reasonably foreseeable future, or a real risk of significant harm, as defined in the legislation.

27.  Findings and reasons about these matters and other threshold issues are discussed below.

Nationality

28.  For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside the country of ‘nationality’. Section 5J(1) refers to this country as a ‘receiving country’.

29.  For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.

30.  The applicant has a passport from New Zealand, which has now expired. The Tribunal is satisfied based on his passport and testimony that the applicant is a national of New Zealand, and that New Zealand is the receiving country for the purposes of the legislation.

31.  The applicant also mentioned that his parents are Samoan. He said that he ‘may have’ Samoan nationality but does not know if he can get a Samoan passport. He said that he has never had a Samoan passport. He said that he is ‘pretty sure’ he has relatives in Samoa as his father visits every couple of years. His father has an Australian passport, and his mother has a New Zealand passport. A person born outside Samoa is a citizen by descent provided that at the time of the person’s birth at least one parent is a Samoan citizen otherwise than by descent or who has resided in Samoa for a period of three years or more which does not have to be continuous.[9] Dual citizenship is allowed.[10] It therefore appears that the applicant is a Samoan citizen as well as a New Zealand citizen. Asked if he was able to live in Samoa, he said that he would, but ‘there are 501s there’. He said that all his children live in Australia, and he does not know people in Samoa.

[9] Section 7 of the Citizenship Act 2004, Samoa; European University Institute and others, ‘Comparative Regional Report on Citizenship Law: Oceania’, February 2020.

[10] European University Institute and others, ‘Comparative Regional Report on Citizenship Law: Oceania’, February 2020.

32.  The Department assessed the applicant’s claims against New Zealand as the country of nationality. The Tribunal has also assessed the claims against New Zealand as the applicant lived there until the age of [Age] and has a New Zealand passport but has never lived in Samoa. The Tribunal notes that if the Tribunal had found that the applicant has a well-founded fear of persecution it would also have needed to consider whether he has a right to enter and reside in Samoa, pursuant to ss 36(3) – (7) of the Act. However for reasons set out below, the Tribunal has found that the applicant does not have a well-founded fear of persecution in New Zealand.

Findings in relation to personal particulars

33.  The Tribunal accepts the personal particulars and information provided by the applicant about his background. He has provided this information consistently, and there is no reason to doubt it.

34.  As confirmed by his Departmental movement records, the applicant left New Zealand at a young age of [Age] years to come and live with his father in Australia. Before travelling to Australia, he was living in Auckland with his mother. He said in his application that he was assaulted in boarding school by seniors and teachers and went to social welfare. They recommended he move to Australia. He then moved to Australia with his father.

35.  At the Tribunal hearing he explained that his mother remained behind in New Zealand when he travelled to live with his father in Australia. His father is [an occupation 1] and came to Australia for a ‘new life’. His father has remarried and has [children]. His father does not return on visits back to New Zealand.

36.  The applicant is close to his father and to his stepmother, who he calls his mother, and to his stepbrothers and stepsisters. He said that he is the eldest of his stepsiblings and has always ‘looked after them’. He has lived with them from time to time. He said that after he breached an apprehended violence order (AVO) taken out against him, he lived with his father. While in gaol and in detention he has kept in touch with them. They speak via video calls, as he does not want them visiting him in detention.

37.  The applicant has a biological brother who came to Australia in 1990. When the applicant arrived in Australia his brother was in custody. He is now out of custody but was deported to New Zealand in 2002. His brother has mental health issues. They do not keep in touch regularly, but he contacted his brother recently to ‘let him know about his visa situation’. His brother lives in Auckland. The applicant does not think that his brother has a job.

38.  His mother found a new partner in New Zealand after his father left for Australia and had a daughter. His mother was an alcoholic and she has now passed away. The applicant does not keep in touch with his stepfather, but he recently spoke to his stepsister regarding his ‘removal’. She is living in Auckland and has [children]. She is not working as she is looking after the children. Her husband is a gang member and does ‘fly-in, fly-out’ work in Queensland. On the applicant’s birthday last month, they sent him some money.

39.  The applicant’s grandparents on both sides have passed away. His father has [brothers] and a sister living in Australia. The applicant also has a number of cousins in Australia. He spends time with all of them. He said that he might have some relatives in New Zealand, but he does not know them. He said that his mother was an alcoholic, so she was ‘the black sheep of the family’. He said that his family did not see relatives in New Zealand, as they were ‘looking after her’.

40.  When the applicant came to Australia he lived in [Suburb 1] and went to [High School]. He completed Year [grade]. For a while his mother moved to Australia from New Zealand to be with him, and he gave up school to help her by going to work. He has had many jobs, working at [Employer], a [factory], in [work sectors 1-3], factory jobs and as [an occupation 2]. She returned to New Zealand in 1997. When she travelled to Australia, this had caused a rift with her husband in New Zealand. The applicant suggested she return to sort out the marriage as he had his own house and was working then.

41.  The applicant is a congregationalist of [a Church].

42.  The applicant has four children. He was with his first partner, ‘F’, from 1997 to 2016. The applicant’s mother met F when his mother was visiting Australia. At the time he thought that he would settle down with F. In [Year] his first daughter was born. The applicant said that at the time, he was working and providing for his family and sending money to his mother in New Zealand. A few years later, in [Year] his twins were born. He said that he then ‘started to get into trouble a little bit’. He said that there were driving offences and breaches of an AVO, which had been taken out in relation to domestic violence on F. He said that they continued to live together even after the AVO. He said that he was imprisoned for domestic violence for 12 months, starting on ‘Christmas night’. He said the second time he was imprisoned related to a number of driving offences, and he was sentenced to 18 months in custody. His next sentence was for three years and was for offences committed when he was ‘jumped by Islanders’ at [Suburb 2] Station. He told the Tribunal that it was recognised that this was self-defence, but ‘they said I went past self-defence’.

43.  He said that he and F lived on the Gold Coast for 15 years. They were living in Sydney when he was taken into custody and F moved back to the Gold Coast. His first daughter who is now aged [Age] is still living there. She works as [an occupation] in a [workplace]. He does not like her to visit him in detention, but they speak a couple of times a week by video.

44.  The twins are turning [Age] years old. They also live on the Gold Coast. They are both [in specified occupations]. He speaks to them at least three to four times a week.

45.  He said that in late 2017 he got together with a woman called ‘K’. They had a daughter who is now [Age] years old. K took out an AVO two years later. He was still living with her until then.  In 2020 he was sentenced to three years’ imprisonment, for a number of charges including break and enter, domestic violence and breach of AVO, but ‘all related to one incident’. He said that K has ‘dumped’ his daughter with her mother, and K’s mother has cut him off from seeing his daughter. He said that ‘his ex’ had been trying to contact him and he does not want to ‘go down the path again’.

46.  These particulars are accepted by the Tribunal.

Findings in relation to incidents of altercations with New Zealand gang members in Australia, and associations with bikies in Australia

47.  The Tribunal accepts the applicant’s evidence about altercations with New Zealand gang members in Australia, and about his associations with bikies. His evidence was provided coherently and with detail and is consistent with his criminal record as referred to in his application and in evidence to this Tribunal. His evidence is set out below.

48.  He told the Tribunal that he ‘fought a lot as a kid’. He said that soon after he arrived from New Zealand, some gang members from the New Zealand gang, [Gang 1], were trying to establish their gang in his area of Sydney. The applicant said that because he knew about ‘what happened in New Zealand’ he told these gang members ‘not to set up’ in his area as ‘everyone got along’ in his area.  He said that once at the age of [Age] in [Suburb 3] he had had a ‘few drinks’, and an altercation took place, and he ‘bashed a [Gang 1] member’. This person was wearing a [Gang 1] shirt. He did not know the names of the [Gang 1] member. The police came but by then they had all left.

49.  The applicant told the Tribunal that later this gang member’s father was angry and wanted to retaliate, but the applicant ‘bashed the father as well’. Following this, this man’s nephew, a [Gang 2] member, came to the area. He was trying to recruit people to [Gang 2]. The applicant was bashed by him and others, and the applicant also ‘bashed him’ and a couple of his fellow gang members.  The applicant was injured and went to hospital and was charged.

50.  The applicant told the Tribunal that three weeks later the [Gang 1] members were in in the area and were doing ‘gang stuff’. The applicant had a lot of friends, and they had a fight at the [location] with the gang members, and the police came, and the applicant was arrested. He was charged with assault and disorderly conduct. He is ‘pretty sure he went to court’. He is not sure if the [Gang 1] members were charged.

51.  He said that the [Gang 1] and [Gang 2] gangs tried to establish themselves in Australia but have not been able to do so. He said that one of the gangs tried to get a clubhouse but were prevented from doing so.

52.  He said he has associated with bikies from 1997 (the age of [Age]) until 2018. At the Tribunal hearing he was asked to elaborate on his ‘association with bikies’. He told the Tribunal that he had not joined a gang, but ‘hangs out’ and ‘knows’ a lot of gang members in Australia. They are from Rebels and Comancheros, Nomads, Notorious and Finks.

53.  The Tribunal accepts this evidence as it is consistent with information provided about his criminal history in his application and at the Tribunal hearing, and with information he provided about altercations in his youth with the New Zealand gang members.

The refugee criterion

Does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?

54.  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.[11]

[11] Section 5H (1) of the Act.

55.  The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:

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

·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 above; and

·the real chance of persecution relates to all areas of a receiving country.

Is there a real chance of serious harm if the applicant were to return to New Zealand?

56.  The applicant claims to fear returning to New Zealand as he believes that he will be killed, seriously hurt or kidnapped because of his interactions with gang members and association with bikies. He said that he is also afraid of bikie gangs as they have links to police.

57.  For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[12] − not only must a person fear persecution, there must also be a prospect of that fear being realised.

[12] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, < The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[13]

[13] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p171.

59.  In MIEA v Guo (1997) 191 CLR 559, the Court stated that conjecture or surmise has no part to play in determining whether a fear is well-founded: ‘A fear is well-founded when there is a real substantial basis for it. A fear of persecution is not well-founded if it is merely assumed or if is mere speculation’.

60.  The Tribunal is not satisfied that there is a real chance, that is, a substantial chance (Chan v MIEA (1989) 169 CLR 379), of serious harm arising from incidents which took place between 1997 and 2000. Reasons for this are set out below.

61.  The applicant claims that his fear derives from incidents when he was around [Age] years old when he bashed members of New Zealand gangs in Australia, and from his association with Australian gangs, which he said would lead to harm from New Zealand gangs.

62.  He said that if he returns to New Zealand he would live in Auckland as his sister is living there. New Zealand’s largest gangs are reportedly the [Gang 1], [Gang 2] and the Nomads, and many are present in Auckland.[14]

[14] Greg Newbold and Rāwiri Taonui, Te Ara - the Encyclopedia of New Zealand, ‘Gangs - Māori gangs and Pacific youth gangs’, 1 April 2020; Brittney Deguara, Stuff (New Zealand), ‘Understanding how New Zealand’s gangs work’, 10 June 2021.

63.  The altercations with New Zealand gang members he has described took place when he was aged around [Age], over 20 years ago. The applicant was asked by the Tribunal why the gang members would want to harm him so long after they fought which was around 1997. He said that ‘I can remember things from so long ago’ and they ‘know me’. He said that he heard from people in his area that the gang members that he had bashed had been deported to New Zealand and he fears bumping into them, and them remembering him. He said that he fears bikie gangs in New Zealand as they are ‘sneaky’. He said that if you have done something to a gang member, ‘the gang remembers’. He is afraid as he has a distinctive name and gang members from [Gang 1] or [Gang 2] will find him because he bashed some of their gang members in Australia. He said that his brother said to him that if he goes over to New Zealand, people would ‘respect him’. He said that this ‘spun him out’.

64.  He said that his sister had told him that a couple of her friends had been murdered. He does not know the details. He knows one was in his early 20s and his murder was gang-related.

65.  While the Tribunal accepts that retaliation is a feature of gang conduct, and individual gang members may remember him by his distinctive name, it is purely speculative to suggest that these gang members may bump into him and harm him in the future. He told the Tribunal that the bashings took place around 1997 and after this, he did not see the gang members from [Gang 1] or [Gang 2] again in Australia. He did see their friends and family in the area and would often have arguments with them. There were no further fights, and then he moved out of the area.

66.  He could not recall specific names of the individuals involved in the fights, there is no evidence as to where they are living or whether they are still involved in gangs, and importantly, he had no further interaction with the individuals or the gangs in Australia other than some later arguments in the street with their friends or family members. Furthermore, the applicant told the Tribunal that he does not fear being actively sought out but fears that he will bump into the gang members he fought with, as New Zealand is small. He said that if he bumps into them, they will want to harm him. Asked if there was anything further he wished to say about this, he said that he had said it all.

67.  The fact that there was no further retaliation in Australia suggests that there would not be retaliation over 20 years later even if he were to bump into these individuals, which is itself speculative. While the Tribunal accepts that there may have been gang murders involving friends of his sister, there has not been sufficient detail of these murders provided to indicate that they have relevance to the applicant’s situation. The fact that the applicant fears bumping into gang members rather than being actively sought out, indicates that the chance of harm is remote, given that there is no information about the whereabouts of the individuals concerned or their motivation to harm him, as there was no retaliation in the past.

68.  Furthermore, the fear of these individual New Zealand gang members has not been in the forefront of the applicant’s mind. When asked if he raised the issue of fear from the [Gang 1] or [Gang 2] members to this Tribunal differently constituted, when seeking review of the Department decision not to revoke the cancellation of his visa, he said that he did not tell the Tribunal about fear of returning to New Zealand because of association with gangs. He explained that he had not thought about this as an issue at the time. He said that when talking to the Tribunal differently constituted he focused on being separated from his children. He said that it was only when he was talking to a friend about it that he was reminded of the altercations with the gang members, and that the New Zealand gang members may harm him if he returned to New Zealand. He was asked if he wished to tell the Tribunal anything else about his Tribunal cancellation decision; he said that one of his former partners, F, wrote a letter of support. He said that his other former partner, K, wanted to give evidence but had not written a letter so they did not allow her to do so. He said that he was charged with domestic violence, but they wanted to tell their stories about what really happened. He said that he was happy for the Tribunal to look at the Tribunal cancellation decision. He said that he has appealed to the Federal Circuit Court.

69.  The applicant also told the Tribunal that it did not occur to him until ‘he had his visa pulled’ that he would be sent back to New Zealand. He said that ‘one of his ex’s’ asked him what would happen if in New Zealand he bumped into the gang members he had bashed, and this ‘made him think about it’.

70.  The Tribunal acknowledges that the applicant may have wished to focus on his children in the application for review of the cancellation decision and in his evidence to this Tribunal differently constituted, but if he had a strong fear of returning to New Zealand based on the incidents when he fought with [Gang 1] and [Gang 2] members, it would have been expected that he may have mentioned this to the Tribunal differently constituted. Further, his evidence was that he only thought about this as an issue when mentioned by ‘an ex’, rather than him experiencing strong emotions about the issue. This lack of attention to the issue of fear of gangs is not a determinative issue in these findings, but it is indicative that it was not an issue at the forefront of the applicant’s mind in respect of returning to New Zealand, which may suggest that the chance of harm from gang members is somewhat speculative and remote.

71.  The Tribunal is also not satisfied that there is a real chance that the applicant would be harmed for reasons of his association with bikie gangs in Australia.

72.  As referred to earlier, the applicant told the Tribunal that he ‘hangs out’ and ‘knows’ a lot of gang members in Australia, including from the Rebels and Comancheros, Nomads, Notorious and Finks. He said that these gangs have links in New Zealand. He said that he has associations with the Comancheros, and ‘everyone is against’ the Comancheros in New Zealand. He said that many of the ‘501 boys’ who have been deported to New Zealand are Comanchero members. He said that they clash with the other gangs and there ‘have been some murders’. He said that he would not join a gang in New Zealand, but he is afraid of being pressured to join a gang. He said that some people he knew did not want to join and kept being pressured, and two got killed. He had grown up with them and all had come in and out of gaol. Asked for their names, he said that he only knew them by their nicknames. He said it was rival gangs that murdered them, due to drug transactions.

73.  During the hearing the applicant also mentioned that in New Zealand gang membership ‘runs through my whole family’. He said that his sister and her husband are in a gang, but he is not sure of the name. All the members wear [certain] clothes. He said that he used to send money to his sister and at the Tribunal hearing he said that he has been in contact with her recently. He said that his brother is not a member of the gang and does not like gangs either, as he was in and out of gaol a lot.

74.  The applicant told the Tribunal that he has not been involved in any bikie gangs in Australia. He knows people in the bikie gangs but has never joined.

75.  The Tribunal accepts that the Australian gangs have associations in New Zealand. Sources indicate that a number of Australian motorcycle or ‘bikie’ gangs, such as the Comancheros and Bandidos, established chapters in New Zealand in recent years.[15]

[15] Brittney Deguara, Stuff (New Zealand), ‘Understanding how New Zealand’s gangs work’, 10 June 2021; Sophie Cornish, NZ Herald, ‘How gangs work: Organised crime, drugs, how prospects earn their patch’, 24 June 2019; Jared Savage, NZ Herald, ‘Stronger and stronger’ – Australia’s most dangerous gang the Comancheros open New Zealand chapter’, 18 February 2018.

76.  On 10 June 2021, the New Zealand news agency Stuff published an interview with Dr Jarrod Gilbert, described as a leading expert on New Zealand’s ‘gang landscape’, in which he explained that ‘there are predominantly three styles of gangs – the outlaw motorcycle clubs, the patched street gangs, and the LA-style street gangs’:

[Deleted].[16]

[16] [Source deleted].

77.  The Tribunal also accepts that the applicant’s sister and brother-in-law are gang members, and this will probably lead to him being asked about gang membership by them or their friends, or possibly being invited to join. He has confirmed that he never joined a gang in Australia, although he knew many of them and hung out with them. The fact that the applicant has not been a gang member mitigates against any harm he may suffer from rival gangs. Although he knows and has associations with a number of Australian gangs, he would not be targeted as a gang member. The fact that he resisted joining a gang previously means that it is likely that he would also be able to resist membership in New Zealand if invited to join.

78.  Furthermore, the chance of harm must be considered within the context of the crime rates in New Zealand, as discussed in some detail with the applicant at the Tribunal hearing. While there is some information that gang membership is growing, the rates of crime are generally low. The sources are discussed below.

79.  The Gang Intelligence Centre suggested gang membership numbers had doubled in the five years, rising from 4,000 members to 8,000 in 2021.[17] The Economist stated that these are the highest per capita of gang membership in the world.[18]

[17] The Economist, 2018 quoted in The Guardian, August 2022, < Some New Zealand politicians want to crack down on gangs. That’s no way to solve the problem | Morgan Godfery | The Guardian>.

[18] The Economist, 2018 quoted in The Guardian, August 2022, < Some New Zealand politicians want to crack down on gangs. That’s no way to solve the problem | Morgan Godfery | The Guardian>.

80.  However, notwithstanding gang membership rates, independent sources indicate that New Zealand is one of the safest countries in the world.[19] As put to the applicant at the Tribunal hearing, figures about gang violence are low, compared to a population of 5 million. The applicant said that he understands that crime rates are low, but he is in a particular category of people with bikie associations, and he knows of others who have been deported, and then killed after being ‘dragged into a gang’. He said that people think it will never happen until it happens. He said that of 20 cases of shootings he knew three people, suggesting that in his community, crime is high.

[19] Global Peace Index 2023, <GPI-2023-Web.pdf (visionofhumanity.org)>; World Population Review, <Violent Crime Rates by Country 2023 (worldpopulationreview.com)>; Global Organised Crime Index, ‘Profile New Zealand’, 2023.

81.  The Tribunal is not satisfied that there is a real chance of serious harm for the applicant even given his bikie associations and that he will be in a community where rates of crime are higher than the general community. Even though he associated with bikies in Australia he resisted joining a gang, and he could choose to avoid membership as he did in Australia and as his brother has done in New Zealand. It is clear from the sources that generally there are low rates of crime in New Zealand. The Global Peace Index finds that New Zealand is the fourth most peaceful place in the world.[20] It is also ranked as one of the countries in the world with the least crime, with a rate of 0.74 homicides per 100,000 people.[21] The Global Organised Crime Index states that it is safer than Australia and ranked 149 out of 193 countries. It is stated that ‘New Zealand is considered one of the most stable countries in the world, with a high level of respect for political rights and civil liberties. The legal framework against organised crime is robust’.[22]

[20] Global Peace Index 2023, <GPI-2023-Web.pdf (visionofhumanity.org)>.

[21] World Population Review, <Violent Crime Rates by Country 2023 (worldpopulationreview.com)>.

[22] Global Organised Crime Index, ‘Profile New Zealand’, 2023.

82.  The OSAC Report on New Zealand confirms the low crime rate and states that most crime involves theft:

Crime is less prevalent in New Zealand than in major U.S. cities, though New Zealand is experiencing an increase in some types of criminal offenses, especially in Auckland and Wellington. Most of the crime involves theft, including from motor vehicles and hostels.[23]

[23] United States Department of State OSAC, ‘New Zealand Country Security Report’, 28 August 2023, < New Zealand Country Security Report (osac.gov)>.

83.  Furthermore, as discussed with the applicant at hearing, searches of country sources did not reveal examples of motorcycle gangs who located former members from Australia.[24]

[24] Searches were conducted in 2023 using the CISNET database and the Google, Yahoo, Bing and DuckDuckGo internet search engines in relation to this question.

84.  Although the applicant indicated there is gang infiltration in the police force, and there may be instances of corruption, generally the law is implemented effectively with criminal penalties for corruption.[25]

[25] United States Department of State, ‘2022 Country Report on Human Rights Practices New Zealand’, 2023.

85.  The Tribunal acknowledges the emotional and social difficulties for an applicant in returning to a country that is unfamiliar and leaving behind family, including children, in Australia. In this case, the applicant has a large family in Australia. There is no doubt that it will not be easy for him to move to New Zealand without his family. However it is the role of this Tribunal to determine whether the applicant meets the criteria for a protection visa. When considering the applicant’s particular circumstances in the context of relatively low crime rates in New Zealand, the lack of harm in Australia from gangs since his youth, and the fact that he refrained from gang membership in Australia, the Tribunal is not satisfied that there is a real chance, one that is substantial and non-remote, of serious harm from gangs if the applicant were to return to New Zealand in the reasonably foreseeable future.

86.  The Tribunal is not satisfied that the applicant would be harmed as a result of assaults or bullying at school by teachers or students prior to departure at the age of [Age]. At the Tribunal hearing he did not press these claims or provide details of why he would have any fears relating to these incidents, when asked if he had any other fears or claims. He also did not provide any information about these claims in writing although invited to do so. Further these incidents took place prior to 1994 such that it is unlikely any further harm would ensue as a result.

Is effective protection available to the applicant?

87.  A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act.

88.  Section 5LA(1) of the Act provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation and that State, party or organisation is willing and able to offer such protection.

89.  When asked about New Zealand’s robust protection system and independent judiciary, the applicant said that the police would not be able to look after him. He said that there are so many unsolved cases, and he fears ‘just disappearing one day’.

90.  The Tribunal is satisfied that there is an effective state system on the basis of sources set out below.

91.  New Zealand is a parliamentary democracy with a robust rule of law.[26] There is criminal legislation in place, such as the Crimes Act 1961 (New Zealand), which prescribes particular crimes and punishments. This includes s 98A which allows up to 10 years’ imprisonment for participating in an organised criminal group and other provisions preventing joint criminal enterprise (s 66(2) for example).[27]

[26] World Justice Project, 14 October 2021, < New Zealand_2021 WJP Rule of Law Index Country Press Release_1.pdf (worldjusticeproject.org)>.

[27] Crimes Act 1961 (NSW)

92.  There is an independent police force and New Zealand respects the rule of law.[28]

[28] World Justice Project, ‘Rule of law index 2023’, 30 October 2023.

93.  Crime is enforced by a police force with more than 370 police stations, a staff of 12,000 and operations on land, sea and air.[29] According to sources, the police force trains to Western standards and is actively involved in crime prevention and response. The police force has specialised units to deal with armed offenders.[30] The same report noted that although the police force was less resourced than its equivalent in the USA, the police typically responded to major incidents with appropriate personnel. It noted also that they were increasing staff by 1,800.[31]

[29] United States Department of State OSAC, ‘New Zealand Country Security Report’, 28 August 2023, < New Zealand Country Security Report (osac.gov)>.

[30] United States Department of State OSAC, ‘New Zealand Country Security Report’, 28 August 2023, < New Zealand Country Security Report (osac.gov)>.

[31] United States Department of State, ‘Overseas Security Advisory Council Report for New Zealand 2021’, 23 September 2021.

94.  Sources suggest that the New Zealand police actively arrest those involved with gangs[32] as referred to by the delegate in the Department’s decision. The police had announced in 2023 that a nationwide operation against gang activity had resulted in more than 50,000 charges brought over a year. A police statement quoted said police had run ‘large and visible operations keeping the movement and actions of gang members in check. We have deployed staff across the country and also had checkpoints in operation’.[33] The Organised Crime and Corruption Reporting Project in September 2023[34] reported that in the findings of Gang Harm Insights Centre the authors reported 33 gangs were active with a total of 8,875 members, which demonstrated recent growth. Their largest source of income was distribution of drugs and illicit substances. The police had announced that a nationwide operation against gang activity had resulted in more than 50,000 charges brought over a year. A police statement quoted said police had run ‘large and visible operations keeping the movement and actions of gang members in check. We have deployed staff across the country and also had checkpoints in operation’.

[32] See for example, Lucy Cormack, Sydney Morning Herald, ‘Buckets of KFC and an unwitting international air crew: How police operation uncovered alleged drug smuggling ring’,

23 December 2019; New Zealand Herald, ‘Comancheros gang targeted in two-year long drug and money laundering investigation’, 6 March 2024; New Zealand Police, ‘Taking the sting out of the killer bees-gang members arrested, drugs and money seized as part of Operation Bear’, 1 December 2023.

[33] OCCRP, ‘New Zealand files 50,000 charges in national crackdown on drugs’, 7 September 2023.

[34] OCCRP, ‘New Zealand files 50,000 charges in national crackdown on drugs’, 7 September 2023.

95.  Further, the new coalition government which was elected in 2023 made a campaign promise to crack down on gangs in a new ‘get tough’ policy.[35] Some of the policies they said would be introduced include extra police powers to search for guns, to make gang membership an aggravating feature of sentencing, to ban gang patches in public, to stop public gang meetings and prevention of communication between gang members.[36] New Zealand police said new powers were proving effective.[37]

[35] The Conversation, 19 December 2023, <NZ’s new government is getting tough on gangs – but all the necessary laws already exist (theconversation.com)>.

[36] The Conversation, 19 December 2023, <NZ’s new government is getting tough on gangs – but all the necessary laws already exist (theconversation.com)>.

[37] New Zealand Police, ‘Cracking down on gangs’, 9 November 2023.

96. New Zealand has an independent judiciary,[38] and the government respects this independence. The law provides for penalties for corruption.[39]

[38] World Justice Project, ‘World Justice Project Rule of Law Index 2023’, 30 October 2023, pp.22, 24, 31, 133; Global Initiative Against Transnational Organized Crime, ‘Global Organized Crime Index 2023: New Zealand’, 23 September 2023, pp.5&6; US Department of State, ‘Country Reports on Human Rights Practices for 2022 - New Zealand’, 20 March 2023.

[39] United States Department of State, ‘Country Reports on Human Rights Practices for 2021 - New Zealand’, 12 April 2022.

97.  The Global Organised Crime Index 2023 states that in recent years there have been a few cases of attempted or actual infiltration of police and/or corruption of individual police members by organised crime. However, there is currently no evidence of systematic corruption of police or border control or direct involvement of police in criminal markets.[40]

[40] Global Initiative Against Transnational Organised Crime, ‘Global Organised Crime Index 2023: New Zealand Report’, 23 September 2023.

98.  Section 5LA requires that the relevant State, party or organisation must be willing and able to offer the relevant protection. The Tribunal is satisfied given these sources listed above that the State is willing and able to offer protection to those fearing gangs. There appears to be no reason that the applicant would not be able to access protection; the protection is durable in that it is consistently available, and consists of an appropriate criminal law, reasonably effective police force and impartial judicial system (s 5LA (2).) While no police force can cover every situation,[41] it does appear from the sources cited above that it can respond in a reasonable time[42] and is acting proactively to combat gang criminality.

[41] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, Section 9.5, as re-issued 1 July 2017 (Refugee Law Guidelines).

[42] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, Section 9.5, as re-issued 1 July 2017 (Refugee Law Guidelines).

99.  The Tribunal is satisfied that the protection consists of an impartial judicial system. The Refugee Law Guidelines suggest that an impartial judicial system is one that applies the law in a consistent manner and does not apply differing standards for a reason under s 5J(1)(a).[43]

[43] Department of Home Affairs, Refugee Law Guidelines, section 9.5, re-issued 1 July 2017.

100.  The Tribunal found earlier that it is not satisfied that there is a real chance of serious harm if the applicant were to return to New Zealand in the reasonably foreseeable future. Further and in the alternative, the Tribunal is satisfied that effective protection measures are available, and it follows therefore that the applicant does not have a well-founded fear of persecution.

Findings on refugee criterion

101.  The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation if he were to return to New Zealand in the reasonably foreseeable future.

Does the applicant meet the complementary protection criterion?

102.  If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).

103.  Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm for reasons set out earlier. The Tribunal has found that the applicant does not face a real chance of serious harm if the applicant were to return to New Zealand in the reasonably foreseeable future, for reasons set out earlier in this decision. For the same reasons, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation (MIAC v SZQRB [2013] FCAFC 33).

Findings on complementary protection criterion

104.  The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand there is a real risk of significant harm.

CONCLUDING PARAGRAPHS

105.  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).

1. 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).

2. 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 any of the criteria in s 36(2).

   DECISION

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

Jane Marquard
Member

ATTACHMENT A  -  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.

…