2403804 (Refugee)

[2024] AATA 1967

2403804 (Refugee) [2024] AATA 1967 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403804

COUNTRY OF REFERENCE:                   Kiribati

MEMBER:James Lambie

DATE:9 May 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 May 2024 at 11:32am

CATCHWORDS

REFUGEE – Protection Visa – Kiribati – emotionally and physically harmed by her ex-husband – victim of family violence – applicants do not have a well-founded fear of persecution – delay in applying for protection in Australia –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 February 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be a citizen of Kiribati in the case of the first-named applicant, of Tuvalu in the case of the second-named applicant, and of both Kiribati and Tuvalu in the case of the third-named applicant, applied for the visas on 4 November 2023. The delegate refused to grant the visas on the basis that the applicants were not persons to whom Australia owed protection obligations.

3. The applicants appeared before the Tribunal on 8 May 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is whether the applicants meet the refugee criterion and, if not, whether they are entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The first-named applicant, Ms [A], claims to be [age] years old and a national of Kiribati.

12. Ms [A] first entered Australia on [date] November 2017 as the holder of a subclass GD 403 visa, which was renewed in July 2018 and November 2022. This visa ceased on 8 November 2023. She applied for the protection visa the subject of this application and naming the second and third-mentioned applicants on 4 November 2023.

13. On 29 February 2024, the applicants were notified that the Department of Home Affairs had refused to grant their application for protection visas in a decision made on the same date.

14. On 1 March 2024, the applicants applied to the Tribunal for merits review of the Department’s decision.

    Claims

15. Ms [A]’s claims are summarised in the delegate’s decision and her protection visa application. Her claims are:

    ·she has been emotionally and physically harmed by her ex-husband during their relationship;

    ·she has been threatened by her ex-husband when he became aware of her new relationship in Australia; and

    ·if she returns to her home country, she will be mistreated and seriously harmed because of her new relationship and of having a child of that relationship.

    Evidence

16. The material before the Tribunal includes, relevantly:

    ·the applicants’ protection visa application, lodged on 4 November 2023;

    ·the protection visa decision record, dated 29 February 2024;

    ·the application for review form, dated 1 March 2024;

    ·Department file [number] concerning his protection visa application; and

    ·country information on Kiribati, referred to below.

    Country of reference / receiving country:

17. Mrs [A] claims to be a citizen of Kiribati. Based on evidence provided to the Department by her, and in the absence of any other evidence to the contrary, the Tribunal finds that Kiribati is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

18. The Tribunal is satisfied on the basis of the evidence before it that Mrs [A] does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Hearing

19. The applicants appeared before the Tribunal on 8 May 2024 to give evidence and present arguments.

20. After dispensing with the hearing preliminaries, including an exhaustive description of the requirements necessary to be made out for the grant of a Protection Visa, the Tribunal discussed with Mrs [A] that to be granted a Protection Visa she must either be recognised as a refugee or be a person entitled to Complementary Protection.

21. The Tribunal explained that under Australian law, to be a refugee she must have a well- founded fear of persecution in Kiribati.  This means the Tribunal must be satisfied that there is a real chance that she will face serious harm if he returned Tuvalu.  The harm must be directed at him for one of the following Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.

22. With regard to Complementary Protection, there must be substantial grounds for believing that there is a real risk she will suffer significant harm if removed from Australia to Tuvalu.

23. The Tribunal discussed her claims as summarised in the delegate’s decision and his protection visa application.  It asked if his claims were correct, complete, and up to date.  She said that they were and that she did not need to add to them

24. The Tribunal asked why he had waited until the expiry of her subclass 403 visa to make her protection visa application.  She said she had been working in New South Wales and was not aware that the opportunity existed to make a protection visa application until her contract wound up and she was advised by one of her friends that she may be eligible to apply.  The Tribunal asked if she had retained any record of this, such as an email or text message.  She said she had not.

25. The Tribunal asked if she could provide some background or detail about her claims to have been the victim of family violence.  She said that the name of her former husband was [Mr B].  There are two sons and one adopted child of this marriage. In order to provide for the family, she applied to work in Australia and arrived in 2017.  She said that, during a telephone conversation with [Mr B], he told her that he was in a relationship with another woman, and that she considered the marriage to be at an end.  In a later telephone conversation, the date or time of which she could not now recall, she told him that she was in a relationship with the second-named applicant, [Mr C].  In response, she said, he threatened to kill her. She said that he had previously been violent in the relationship.

26. The Tribunal asked if there was any record of the threat or any other violence. She said it was not because such matters were considered private in Kiribati culture. The Tribunal asked if she and her former husband had ever communicated by email or text message. She said they had only spoken on the telephone. The Tribunal asked if her former husband had ever conveyed similar threats or expressed any sentiment about her relationship with [Mr C] to any other person. She said there was no such communication to her knowledge. The Tribunal asked if she had ever communicated with friends or family about the threats or other violence. She said they may have known about it but there was no record of any such communication. The Tribunal asked if she had ever spoken to any church or community leaders, or any welfare agency about these matters. She said she had not. The Tribunal asked if there were any records of any nature relating to her allegations, other than the protection visa application. She said that there were none to her knowledge.

27. The Tribunal asked if she was now divorced from [Mr B]. She said that she did not know how to take the necessary steps for a divorce in Kiribati. The Tribunal asked if the authorities in Kiribati would be able to protect her. She said they would not. The Tribunal asked if she had asked for help. She said she had not.

28. The Tribunal asked why, if [Mr B] had been in a relationship with someone else for some years, he would seek to harm her.  She said she did not know.

29. The Tribunal asked why it was that she had failed to respond to the department’s requests for information in January 2024. She said she had not seen those requests. The Tribunal noted that she had also been requested to attend an interview but had not done so. She said that was not convenient for her, owing to her work commitments.

30. The Tribunal asked if there was anything further she could say or any detail she could provide that might assist it in assessing her claims. She said she had not realised that it was important to keep records of such things.

    Assessment of claims and evidence, and findings:

31. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision-maker is not required to make the applicant's case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, and Prasad v MIEA (1985) 6 FCR 155 at 169-70).

32. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility.  In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

33. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

34. The Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which notes:

    In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[1]

    [1] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

35. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[2]

    [2] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

36. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

37. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

38. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

39. The most recent country information from the United States Department of State in relation to domestic violence in Kiribati is:

    Domestic violence was a crime. The law provided penalties of up to six months in prison for common assault and up to five years in prison for assault involving bodily harm. Police investigated rape and domestic violence allegations effectively and the judicial system prosecuted them appropriately.

    Domestic violence, often exacerbated by chronic alcohol abuse, continued to be a serious problem. Cultural taboos on reporting rape and domestic abuse, and police attitudes encouraging reconciliation rather than prosecution, existed.

    The government, in partnership with UN Women and development partners, offered training for police, public prosecutors, health workers, social welfare workers, education officials, elected officials, and nongovernmental organization workers to implement the law effectively.

    The police force had a Domestic Violence and Sexual Offenses Unit whose officers participated in a capacity-building program that provided training in handling such cases. Police ran a 24-hour hotline for survivors of sexual violence and domestic abuse. The government’s Strengthening Peaceful Villages program, a community-based intervention program, engaged most of the country’s population, which resided in South Tarawa. The Kiribati Women and Children Support Center maintained its support for women and children affected by violence, providing victims with counseling and referral services. The Support Center operated a second shelter for women and children on Kiritimati Island, the second most populous island in the country. The Ministry of Health operated a clinic at the main hospital in Tarawa for victims of domestic violence and sexual offenses.[3]

    [3] Kiribati - United States Department of State, Section 6 (2023)

40. Ms [A] has provided very sparse and general allegations of having been the victim of family violence and no corroborative material of any nature.  While her claims that there are cultural taboos on reporting domestic abuse are supported by the country information, she could provide no reason why state protection would not be afforded her if she requested it.  Given that she is now in a spousal relationship with [Mr C], the Tribunal considers it reasonable to find that any cultural taboos against reporting any threat would be diminished, if not inapplicable to her circumstances, and that there are adequate resources in Kiribati to afford her protection.  It therefore does not consider that her fear of harm by reason of her former relationship with [Mr B], should such a fear exist, is well-founded.

41. The Tribunal has also noted that Ms [A], despite having first arrived in Australia on[date] November 2017, did not apply for a protection visa until 4 November 2023.  Her explanation for the delay was that she was unaware of the existence of such a visa until informed of it by a friend at a time she could not specify.

42. A delay in seeking protection can support an adverse credibility finding as well as a finding that the applicant’s fear is not well-founded[4].  In Subramaniam v MIMA[5], the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine.  The Tribunal does not consider Ms [A]’s explanation of the delay to be plausible or reasonable, and it is unsupported by any evidence. However, the Tribunal, having not accepted the applicant’s claims to fear significant harm should she return to Kiribati, does not consider this issue necessary to determine.

    Cumulative claims

    [4] See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.

    [5] [1998] FCA 305.

1. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal finds that there is no real chance that they will suffer persecution for any reason if they return to Kiribati now or in the reasonably foreseeable future.  Therefore, the Tribunal finds that the applicants do not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if they return to Kiribati. Accordingly, the Tribunal finds they do not satisfy the criterion in s 36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia, there is a real risk that they will suffer significant harm?

2. The Tribunal has considered the applicants’ claims under complementary protection.

3. Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicants, the Tribunal is not satisfied that the applicants will be arbitrarily deprived of life, the death penalty will be carried out on them, they will be subjected to cruel or inhuman treatment or punishment or they will be subjected to degrading treatment or punishment if they return to Kiribati now or in the reasonably foreseeable future.

   Conclusion: Refugee Criterion

4. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicants will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). Their fear of persecution is not well-founded as required by s 5J of the Act and therefore they are not refugees within the meaning of s 5H of the Act.

   Conclusion: Complementary Protection

5. Considering the applicants’ individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Kiribati, there is a real risk that they, or any of them, will suffer significant harm.

   Overall conclusion:

6. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

7. Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

8. There is no suggestion that the applicants, or any of them, satisfy 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 applicants do not satisfy the criterion in s 36(2).

   DECISION

9. The Tribunal affirms the decision not to grant the applicants protection visas.

   James Lambie
   Senior 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.

   …