2406222 (Refugee)

[2024] AATA 2632

2406222 (Refugee) [2024] AATA 2632 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2406222

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Mia Bailey

DATE:25 June 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 June 2024 at 2:21pm

CATCHWORDS
REFUGEE – protection visa – Tonga – sexuality – interest in and attraction to women and same-sex partner – non-acceptance and mistreatment by family and community – vague and inconsistent claims of no relationships, online relationship and meeting in person – recent relationship with man in Australia now finished – no past harm or fear of future harm, and no further interest in same-sex relationships – delay in applying for protection – working to support mother – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 3 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 25 September 2023. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.

3. The applicant appeared before the Tribunal on 19 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages.

   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. Relevant provisions of the Act are extracted in the attachment to this decision.

5. 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 (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

   
   

   s 36(2)(aa) of the Act.

7. 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.[1] For the following reasons, I have concluded that the decision under review should be affirmed.

   [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

   Background and receiving country

8. The applicant, a [Age]-year-old female, arrived in Australia on 29 October 2021 on a Temporary Work (International Relations) (subclass 403) visa under the seasonal worker program.

9. Based on identity information available to the Department, the delegate accepted that the applicant is a citizen of Tonga and there is no information before me to the contrary. I find that the applicant is a citizen of Tonga, and that Tonga is her receiving country for the purposes of assessing her claims for protection.

   Evidence before the delegate

10. According to her protection visa application, she was born and resided in [Location] until she departed for Australia. She completed high school and was not employed in Tonga. She has never married. Regarding her family members, details are provided of her parents who reside in Tonga.

11. Regarding her claims for protection, she stated that she left Tonga for the opportunity to work in Australia and provide for her family. In response to whether she had experienced harm in Tonga, she stated ‘Yes’ and referred to her ‘love life’ not being legal in Tonga and her community and family not being accepting of it. She had a same sex partner in Tonga. People made things hard for them and treated them badly to a point that she was scared that her siblings ‘might get’ her with her partner and tell her parents, leading to punishment.

12. She did not seek help in Tonga because people in her country are Christian and do not accept same sex relationships. She wanted to run away with her partner to a place they could build a life together. It was hard to let go of the bond and connection they had made.

13. Regarding what she thinks will happen if she returns to Tonga, she stated that the ‘same thing’ will happen, and they will be ‘bullied’. She was only able to share things about her same sex partner with her mother, who accepted her. Others could say that she is disgusting and nasty and needs to leave her same sex partner and marry a man. She feels unsafe in Tonga because people in same sex relationships are bullied and treated badly.

14. On 23 October 2023, the Department wrote to the applicant under s 56 of the Act inviting her to provide additional information regarding her claims for protection. No response was received from the applicant. The Department subsequently invited the applicant to attend an interview with a delegate to provide additional information.

15. The applicant attended an interview with the delegate on 10 January 2024. As detailed in the delegate’s refusal decision (a copy of which was provided by the applicant to the Tribunal) the interview commenced without the assistance of an interpreter. During the interview, the applicant expressed difficulty in understanding the delegate’s questions regarding her relationship status and a Tongan interpreter was provided. Having listened to an audio recording of the interview I am satisfied that the evidence summarised below accurately reflects the applicant’s evidence, as provided with the assistance of an interpreter.

16. The applicant’s oral evidence at the protection visa interview is summarised in the delegate’s refusal decision. I note the following relevant evidence:

    i.She is currently in a relationship with a Tongan man, ‘[Mr A]’, who she met about one month ago. She currently lives with [Mr A] and his sister in regional Queensland.

    ii.She came to Australia for work and had no problems while living with her mother in Tonga.

    iii.Asked what she meant by her love life not being legal in Tonga, she stated that she was referring to a man she met in Tonga as being the ‘love of her life’. When questioned further, she referred to a female friend, ‘[Ms B]’, whom she had met in Tonga and was not liked by her family.

    iv.Asked about her relationship with [Ms B], the applicant stated that they first met in May 2023. When it was raised with the applicant that she has been in Australia since 2021, she responded that she has only been in contact with [Ms B] online; they have never met in person.

    v.When asked about the realisation of her attraction to women, she stated that this began when she started talking to [Ms B]. However, she also referred to having an interest in a female friend whom she had met in Tonga in 2021 and stated that at that time she was aware of her sexuality as a lesbian.

    vi.She has only told her mother about her sexuality.

    vii.She confirmed that she had never been in a sexual relationship with a woman in either Tonga or Australia; had not been in any same sex relationships in Tonga and is currently in a relationship with her male partner, [Mr A].

    viii.When asked what she fears if she were to return to Tonga, she stated that nothing would happen to her, and she did not fear harm from anyone in Tonga. The applicant confirmed that she had no other claims that she wished to raise.

17. The delegate did not accept the applicant’s claims to be a lesbian and to have been in a same sex relationship in Tonga as credible. Her evidence was considered to be inconsistent, vague and lacking in detail. The delegate found that she did not have a genuine fear of returning to Tonga due to her sexuality.     

    Evidence before the Tribunal

18. The applicant was invited to appear before the Tribunal by video. She was invited to attend a pre-hearing test call on 14 June 2024 but did not attend, nor make contact with the Tribunal to advise of any issues in joining the meeting. On the day of the hearing, the applicant was unable to join the video link due to apparent technical issues on her part. She consented to appearing before the Tribunal via phone.

19. Regarding the preparation of her protection visa application, she advised that she completed it herself and did not receive any assistance.

20. Regarding her family members, she stated that her father is deceased. He was a farmer on land owned by the family in [Location]. Her mother continues to reside in [Location] with the applicant’s [sisters]. She has [brothers]: [number] reside in [Location] and are engaged in farming the family land; one brother resides in New Zealand. Before coming to Australia, she lived in her family home in [Location].

21. Asked about her current relationship status, she stated that she is not currently in a relationship. She was in a relationship with a Tongan man, [Mr A], for a few months but he has returned to Tonga.

22. Asked about her reasons for leaving Tonga, the applicant stated that she came to Australia under the seasonal worker program to help her mother who has no job and no source of income. Asked why she could not return to Tonga, she again referred to her mother having no work and needing to remain in Australia to financially support her mother. When asked whether there was anything in Tonga that would cause problems for her, she again referred to needing to remain in Australia to help her family financially as their only source of income is farming and weaving.

23. Asked whether she is aware of the protection claims raised in her protection visa application, she stated that she is aware that it states that she is a lesbian. Asked whether this is correct, she responded that it is but the woman she was in a relationship with has left Australia.

24. When asked for further details of the relationship, she stated that she began a relationship with a woman called [Ms B] in Tonga, about 2 weeks before she came to Australia. [Ms B] came to Australia after the applicant, and they lived together in Australia for about one month. This was before she met [Mr A]. They lived in the house of the applicant’s maternal relatives in regional Queensland but did not share a room and were not in an intimate relationship. [Ms B] has returned to Tonga, and they are no longer in communication.

25. I discussed with the applicant that this account differs from her evidence to the delegate that she first met [Ms B] online in May 2023 and has never met her in person. She responded that she knows she has given inconsistent answers, but she is scared she will not be able to stay in Australia to help her mother financially. Asked whether she fears any harm in Tonga because of her sexuality she stated that she does but her main problem is that she needs to earn money to help her family. 

26. Asked whether she had any same sex relationships in Tonga other than meeting [Ms B] a few weeks before coming to Australia, she stated no. I discussed with the applicant that this appears inconsistent with the claims in her protection visa application that she had a same sex partner in Tonga, and they experienced mistreatment because of their relationship. She acknowledged that her answers are inconsistent because she does not want to return to Tonga where she would have no source of income to help her mother. She applied to ‘extend her visa’ so that she would have the opportunity to support her mother.

27. Asked whether she has told any of her family members about her sexuality, she stated no. I discussed with the applicant that this differs from the claims in her protection visa application that she told her mother about her sexuality. She responded that she only told her mother but did not tell any other family members. Her mother advised her to think about what she would gain from a same sex relationship.

28. I discussed with the applicant that at her protection visa interview she stated that nothing would happen to her if she returned to Tonga and she did not fear any harm in Tonga. The applicant agreed. When asked for clarification of why she could not return to Tonga, she responded that she is scared that she would return to live with her mother with no source of income and no job opportunities. Asked whether she thinks she would experience any problems because of her attraction to women, she stated that she would be hated because same sex relationships are not accepted in Tonga, and she would have no source of income to help her mother.

29. I discussed with the applicant that there was a delay of approximately 2 years in lodging a protection visa application from the time of her arrival in October 2021. Asked why she did not apply earlier if she genuinely feared harm for reasons of her sexuality, she stated that she initially was in Australia under the seasonal worker program; it was only after her seasonal worker visa came to an end that she thought to apply for protection.

30. I discussed with the applicant the country information referenced in the delegate’s refusal decision regarding Tongan laws relating to same sex relationships. In response, the applicant stated that she doesn’t ‘think that way anymore’ and doesn’t want to have any further relationships with women. Her only concern now is looking after her mother. When asked why she fears harm for reasons of her sexuality if she does not wish to be in a relationship with a woman, she responded that the main reason she doesn’t want to return to Tonga is that she would have no job and be unable to support her mother. I discussed with the applicant that claims of economic hardship or disadvantage generally do not engage protection obligations under the refugee or complementary protection criteria.

31. I raised with the applicant that, as did the delegate, I have concerns regarding the credibility of her claims to fear harm because of her sexuality. Asked whether there was anything she wished to tell me in response, she stated that she is scared that she will have no way of supporting her mother. Asked whether there is anything else she wished to tell me about her protection claims, she stated no.  

    Findings and assessment

    Factual findings

32. In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    [2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015

    [3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.

33. I have significant concerns regarding the applicant’s claims to be a lesbian (or bisexual) and to fear harm in Tonga for reasons of her sexuality. As outlined above, there are significant inconsistencies in her evidence as provided in her protection visa application, at her protection visa interview, and to the Tribunal. When these concerns were raised with the applicant by the Tribunal, she repeatedly responded that the inconsistencies were due to her fear of not being able to remain in Australia so that she could financially support her family in Tonga. While I acknowledge the applicant’s wish to remain in Australia for that reason, I do not find this to relevantly explain the inconsistencies in her evidence.

34. I have placed weight on the following issues:

    i.In her protection visa application, she refers to having a same sex partner in Tonga with whom she shared a strong bond and connection. At her protection visa interview she stated that she had never been in a sexual relationship with a woman in either Tonga or Australia and had not been in any same sex relationships in Tonga. She referred to a relationship with [Ms B], whom she met online in May 2023 and has never met in person. Before the Tribunal, the applicant stated that she met [Ms B] a few weeks before leaving Tonga and claimed that they lived together in Australia for about one month. She has not been in any other same sex relationships. I consider the nature and degree of these inconsistencies to be significant. The applicant’s sexuality is central to her protection claims. While acknowledging that these are sensitive issues to discuss, I would expect her to be able to accurately recall details of any same sex relationships in which she had been involved over the past few years.

    ii.In her protection visa application and at her interview with the delegate she stated that she had told her mother about her sexuality. Before the Tribunal, the applicant initially stated she had told none of her family members. When the inconsistency was raised with her, she amended her evidence to state that she had only told her mother. I consider that the applicant could reasonably be expected to recall which, if any, family members she had told about her sexuality.

    iii.During her Tribunal hearing the applicant repeatedly stated that her reasons for not wanting to return to Tonga were financial, specifically that she feared not being able to provide financial support to her mother. She agreed with her statements to the delegate at the protection visa interview that did not fear and would not face any harm in Tonga. When asked specifically by the Tribunal whether she feared harm for reasons of her sexuality, she maintained that she did yet also stated that she did not wish to be in a relationship with a woman if she were to return to Tonga. Her principal concern was being in a position to support her mother. I acknowledge that the applicant’s wish to support her mother does not necessarily detract from her claimed sexuality. However, overall, I consider that the applicant’s responses to the Tribunal, and at her protection visa interview, do not reflect a person in genuine fear of harm for reasons of their sexuality.

    iv.I consider the delay of almost 2 years in applying for protection to contribute to the above concerns regarding the credibility of the applicant’s claimed sexuality and whether she genuinely holds a fear of harm for this reason. I acknowledge her response that she did not consider applying for protection while holding a seasonal worker visa. However, given that this is a temporary visa, I have concerns that the applicant would wait for 2 years to apply for protection if she genuinely feared harm for reasons of her sexuality at the time of her arrival in Australia.

1. Considering the above, I do not accept that the applicant genuinely identifies as lesbian or bisexual or that she has been in any same sex relationships. I find that she has fabricated these claims for the purpose of strengthening her protection claims.

   Refugee and complementary protection assessment

2. Considering the above, I find that there is not a real chance that the applicant will be harmed for reasons of her sexuality if she returns to Tonga. I find that the applicant does not have a well-founded fear of persecution for this reason and is not a refugee as defined in s 5H(1) of the Act. I have therefore considered whether the applicant engages complementary protection as outlined in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Tonga, she will suffer significant harm.

3. The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[5] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm for reasons of her sexuality as a consequence of her removal to Tonga.

   [5] MIAC v SZQRB [2013] FCAFC 33

4. I accept that the applicant does not wish to return to Tonga because this would adversely impact her ability to financially support her mother. I find this to not be for any of the reasons in
   s 5J(1)(a) of the Act and to therefore not satisfy the refugee definition. For the purposes of the complementary protection criterion, ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

39.   I find that the harm feared by the applicant, namely that she will be unable to earn a similar income or have access to similar work opportunities in Tonga compared to Australia, to not amount to any of the types of significant harm defined in s 36(2A). The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. Any economic disadvantage that the applicant may experience as a consequence of her return to Tonga would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. 

1. The applicant has not claimed to fear harm for any other reason if she returns to Tonga and I find that no other protection claims arise on the accepted facts.

   Conclusions

2. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Mia Bailey
   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.

   …