2422518 (Refugee) - [2024] ARTA 155

2422518 (Refugee) [2024] ARTA 155 (7 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2422518

Tribunal:Senior Member N Burns
Date:7 November 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 07 November 2024 at 12:53pm

CATCHWORDS
REFUGEE – protection visa – India – Federal Circuit and Family Court remittal – particular social group – homosexual – fear of killing – detention – return visits to India – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424A, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a national of India, applied for the visa on 5 July 2023.
The applicant appeared before the Tribunal on 24 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant is [age] years of age. He first came to Australia to study in March 2014, from Amritsar in Punjab, India. He has resided in immigration detention since [February] 2022, when released from serving a prison sentence for [specified] offences. The applicant told the Tribunal at hearing his offences occurred in the context of his drug use, which began around 2017 and has ceased since prison. Presently he has a monthly injection of medication to treat opioid dependency.
The applicant’s parents live in Amritsar, as does his sister who is married and has children. Her husband is [an occupation 1]. The applicant’s father is a farmer.
At hearing the applicant said he is in touch with his family in India around once a week, over the telephone. They are aware he is in immigration detention, and of his criminal history.
Evidence before the Department
The applicant set out his protection claims initially in his protection visa application form. In it he claimed, in summary that he left India to study. He states the reason he applied for protection was due to his sexuality, which he found out about when around [age] years of age. He states gay people are disliked and mistreated in India, where thousands have been killed or ‘brutally smashed’ by anti-gay groups. He states further in India there are videos of politicians giving speeches encouraging people to kill gay persons.
The applicant was interviewed about his background and protection claims by the delegate on 18 July 2023.
On 21 July 2023 the applicant provided an email to the Department containing several attachments showing screenshots from several [social media] profiles of lesbian, gay, bisexual, transgender and intersex (LGBTI) groups. In an email accompanying the attachments the applicant stated: ‘Am sending you which LGBT groups I follow and am members with their events and update on [social media]’.
The applicant also provided hyperlinks to news articles about the treatment of LGBTI individuals in India. In an accompanying email (dated 21 July 2023) the applicant states:
Hi am attaching some news and incidents which happened in India attacked to be a racist towards my LGBT community. Thts why I can’t go back. My life in big danger if I go back even people gonna kill me there.
…
These are 3 links when you open links then you know how mad and racist people toward my LGBT community.
[errors in original]
The delegate held several credibility concerns about the applicant’s core claims to be a homosexual and ultimately did not accept his claims in this respect. The delegate refused his protection visa application on 8 August 2023.
Evidence before the first Tribunal
On 16 August 2023 the applicant sought a review of the delegate’s decision with a differently constituted Tribunal (the first Tribunal). He provided a copy of the delegate’s decision record, which contains his immigration history and criminal history (in Australia), among other things.
In an email to the first Tribunal on 3 October 2023 the applicant provided hyperlinks (and screenshots) to several news articles about attacks against LGBTI individuals in India.
The first Tribunal did not accept the applicant’s claims to be homosexual and affirmed the delegate’s decision to refuse to grant him a protection visa on 9 October 2023.
Court remittal
The applicant sought judicial review of the first Tribunal’s decision. That decision was set aside by the Federal Circuit and Family Court of Australia (FCFCOA) by consent [in] July 2024. The matter was remitted by consent due to failure by the first Tribunal to comply with s 424A of the Act (now repealed) with respect to information (specifically Departmental movement records) that shows the applicant returned to India on two occasions between [December] 2019 and [February] 2020. The matter is now before the Tribunal pursuant to an order of the Court.
Evidence before the Tribunal
At hearing the applicant told the Tribunal he came to Australia to study in 2014 when he was around [age] years of age. He had no relationships with men or women in India. In around 2017 in Australia he started realising he was attracted to men. He had a relationship with a co-worker called [Partner A] at a [specified] company from 2018-2019 for around a year. They split up after [Partner A's] parents found out. He suspects [Partner A's] brother, who lived with [Partner A], told his parents about them.
The applicant said he has also had some casual encounters with men in Australia (and women), mainly around the time he was a heavy drug user, in the few years preceding his arrest and imprisonment in 2021.
The applicant said sometime in around 2017 or 2018 he told his parents over the telephone that he was homosexual, because they were pressuring him to marry a woman. They were sad and disapproved of this and thereafter when they spoke they would often argue. Even so, they continued to pressure him to marry.
The applicant said he is afraid of being beaten to death by his parents and/or community members if he has to return to India due to his homosexuality which is not tolerated there.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for a protection visa
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.
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.
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).
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.
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
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issues in this case are whether the applicant is owed protection as a refugee or under the complementary protection provisions, as detailed above. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
Homosexuality claims
The Tribunal has considered whether the applicant is homosexual as claimed. As discussed at hearing, it has doubts about his claims in this respect due to several concerns with his evidence, including inconsistencies in some key respects. For example:
a.In the protection visa application form the applicant stated he found out about his sexuality when around [age] years of age, which was in around 2015. Yet he told the Tribunal he realised he was attracted to men in around 2017.
b.According to information contained in the delegate’s decision record the applicant told the delegate he had a relationship with a man called [Partner A] for seven months. He said they met whilst working [at] [Employer 1]. He told the first Tribunal (as recorded in the first Tribunal decision record) he was in a relationship for nine months (from December 2017 to May 2018) with [Partner A]. Yet at hearing before the current Tribunal the applicant said he was in a relationship with [Partner A] for around a year in 2018 and 2019, whom he met whilst [doing another occupation]. When asked about these discrepancies at hearing, the applicant explained that there was another [Partner A]: a friend who worked with him at [Employer 1] whom he also slept with six or seven times over a few months, he thinks in around 2020. When asked if he told the delegate or the first Tribunal about the existence of two [Partner As] – one whom he had a relationship with and the other who was a friend whom he slept with on occasion – the applicant said he tried but his English is not good. The Tribunal is not persuaded by this explanation noting whilst the applicant gave evidence in English at interview with the delegate (as noted in the delegate’s decision record), the first Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The Tribunal also found the applicant’s oral evidence about coming to terms with his sexuality, his relationship history, and problems that ensued (primarily in relation to his parents’ reaction) vague and at times internally inconsistent. For example he told the Tribunal in around 2017 he realised he did not have feelings for women yet was unable to provide further details or context. The Tribunal also notes the applicant’s evidence that he continued to have sex and relationships with women. He claims this was largely in the context of his drug use, and that he had occasional fun with men, such as at clubs or when driving a taxi, but his evidence was very general and lacking context and details. Whilst the Tribunal accepts sexuality can be fluid and even if the applicant had relationships and/or sex with women it does not necessarily follow that he is not attracted to members of the same sex, combined with other concerns, his relationship history with women in Australia does cast some doubt on his claims to be homosexual.
The applicant’s oral evidence also changed during the course of the hearing, at times. For instance when asked his parents’ reaction when he told them about his sexuality the applicant said they were very sad, disappointed, disapproved and did not talk to him properly. Yet earlier the applicant had told the Tribunal he talked to his parents, at least once a week from detention, and they were aware of his circumstances including detention and criminal record. He did not indicate there were any issues, including verbal altercations. However when asked about this later in the hearing, the applicant said he is in regular contact with his parents but it usually ends in fights.
Additionally, the applicant’s return to India on two occasions after he purportedly told his parents about his sexuality, undermines his claims at hearing to fear serious harm (specifically being beaten to death) from them (and community members) on return due to his sexuality.
At hearing the applicant initially said he visited India before he told his parents. However, as discussed with the applicant at hearing pursuant to s 359A of the Act, Departmental movement records show the last two times he visited India was in 2019 and 2020, after he told his parents about his sexuality in around 2017 or 2018. The Tribunal explained to the applicant that this information was relevant to the review because, subject to his comments, it may cast doubts about his claims to have told his parents about his sexuality, and more broadly his claims to be homosexual and if so, would be the reason or part of the reason for affirming the decision under review. The Tribunal invited his comments on this information.
In response the applicant explained that due to his drug use he has memory issues and was confused. He said although he did visit India twice after he had told his parents he was gay, he did not stay with them (instead staying at a hotel) and did not see them during his visit. The Tribunal is not persuaded by this explanation, even taking into account his past drug use may have affected his memory to some extent. This was a key issue before the first Tribunal (and on judicial review): that is the applicant’s return to India in 2019 and 2020. As such the Tribunal would expect the applicant to have recalled as such.
In the decision record the delegate notes according to information from Australian Border Force in 2019 a woman arrived at [a named] Airport from India in 2019 indicating she was his girlfriend. At hearing the applicant explained this was a friend from India called [Ms A] who was coming to Australia for a visit. Even though she was not his girlfriend, he told the immigration officials at the airport that she was, in a bid to help her gain entry (which was not successful). He added at that time his parents were talking about her possibly marrying him. The Tribunal notes the applicant’s explanation about [Ms A] – that she was his friend whom he pretended to be his girlfriend when she arrived at the airport – has been generally consistent (to the delegate, first Tribunal and current Tribunal). It therefore accepts his evidence that [Ms A] was a friend only, and not his girlfriend. This does not undermine his sexuality claims in any significant respect.
In the delegate’s decision record it is also noted the applicant said he had a relationship with a woman in Australia called [Ms B]. In the first Tribunal decision record it states the applicant purportedly told a delegate for a bridging visa application in October 2022 he had a girlfriend called [Ms B full name]. When asked about his relationship with [Ms B] at hearing the applicant said he and [Ms B] did drugs together and had a relationship of sorts from the end of 2020 to 2021. The Tribunal accepts his evidence in this regard. Given sexuality can be fluid and the applicant has never claimed to only have relationships with men in Australia exclusively, the Tribunal does not draw an adverse inference from the fact he was intimate from time to time with a woman (called [Ms B]) in Australia during this period.
A further concern the Tribunal has with the applicant’s claims to be homosexual is the significant delay from when he claims he first started having feelings for men in 2017 (and telling his parents), to applying for protection in mid-2023. At hearing the applicant said this was because initially he had a student visa and after he disclosed his sexuality to his parents they started having fights. He was humiliated, started using drugs, was mentally unstable and did not reapply for another visa. Whilst the Tribunal accepts the applicant started using drugs during this period, it does not accept this was precipitated by him disclosing his sexuality to his parents given the concerns it has with his evidence, as discussed earlier. Therefore the delay in applying for protection does cast doubt to some extent on his core claims.
As noted, the applicant provided to the Department screenshots of several LGBTI [social media] groups and in an email to the Department indicated he was a member of the groups. Yet when asked about this at hearing his evidence was vague and evasive. He said he follows some LGBTI community groups on [social media] but was unable to adequately explain why, except to repeat that he was asked about it by the delegate. When asked what the groups do, the applicant said they offer a meeting place for gays or to post about events. When asked if he went to any of the events he replied ‘no’: he said for the two to three years prior to imprisonment he was mostly taking drugs and sleeping a lot.
Given these concerns the Tribunal does not accept the applicant is homosexual as claimed. It does not accept he has had any encounters and/or relationships with men in Australia as claimed.
Given these findings, the Tribunal finds the applicant would not seek out relationships with men in India on return (if not for fear of persecution in doing so). Therefore it finds he does not face a well-founded fear of persecution in India from the authorities, community members or his relatives based on his past encounters or relationships with men, or future ones, or as a member of a particular social group of homosexuals. His fear of persecution on the basis of his sexuality is not well-founded.
Criminal history

In his protection visa application the applicant declared on [November] 2021 he was convicted of [specified] offences and received a sentence, imprisoned from [November] 2021 to [February] 2022. At hearing the applicant said he was sentenced for several months for [specified] offences. He explained the offences took place in the context of heavy drug use (heroin and methamphetamines) which he started using in around 2017. On release from prison [in] February 2022 he was placed into immigration detention. The Tribunal accepts his evidence about his criminal matters in Australia.
The applicant confirmed when asked at hearing that he has no outstanding criminal matters in Australia. Also that his family in India know about his criminal record and whilst disappointed, they are still in regular contact. For reasons above the Tribunal does not accept the applicant’s claims to have regular verbal arguments with his parents due to his sexuality. Given these considerations the Tribunal does not find the applicant faces a real chance of serious harm from his family members on return to India in the foreseeable future due to his criminal history in Australia.
Further as discussed at hearing, based on DFAT’s advice that it is not aware of defendants being placed in double jeopardy in India for crimes they committed whilst outside India or within India,[1] the Tribunal finds remote the chance the applicant would be prosecuted or otherwise face serious harm from the Indian authorities on return due to his criminal history in Australia.
[1] DFAT Country Information Report India, 29 September 2023 at 5.14.
There is no claim nor information before the Tribunal to indicate the applicant would face serious harm from the community in India because of his criminal record in Australia.
For these reasons the Tribunal finds the applicant does not face a well-founded fear of persecution from the authorities, his family or the community on return to India due to his sexuality or criminal history in Australia. He does not satisfy s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal finds the applicant is a national of India and therefore finds that India is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from the authorities, his family or the community based on his sexuality or criminal record in Australia if he returns to India, now or in the reasonably foreseeable future. In MIAC v SZQRB, the Full Federal Court held that 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.[2] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to India for any of these reasons.
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act, if he is removed from Australia and returned to India. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSION
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  24 October 2024
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.
…