2428581 (Refugee) - [2024] ARTA 683

2428581 (REFUGEE) [2024] ARTA 683 (28 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2428581
Tribunal:General Member M Poon
Date:28 November 2024

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

General Member M Poon

Statement made on 28 November 2024 at 1.34pm

CATCHWORDS
REFUGEE – protection visa – China – civil rights and political interference – village chief did not pay agricultural subsidies and coerced voting – participation in local political gatherings but no formal membership or activities – no threats or harm – passport and previous travel and return – country information – small-scale private political discussion tolerated – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259
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 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 (“the Department”) on 15 August 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth).
The applicant who is a national of China, applied for the visa on 15 April 2024. The Department’s delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (“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.
The applicant appeared before the Tribunal on 26 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant’s claims
The applicant’s claims for protection are contained in her protection visa application form and her written statement dated 9 July 2024, in response to the Department’s request for additional information. Her claims in summary are as follows:
·Since childhood she was taught to obey the Party and the government, and not to oppose them even if she had different opinions.
·In China, her citizenship rights are infringed upon, her civil rights are violated and there is no freedom of speech.
·Elections – whether it be at village level, local government or town level or city government level – are all subject to improper or incorrect interference.
·While on the surface there is democracy and the right to express personal opinions, the fact is every word one says will not be taken seriously and one cannot elect the candidate they have in mind. Chinese citizens do not have the right to vote, only a small number of people can vote.
·There are many problems for people living in China relating to food, health, the medical system, social welfare, pollution, public security etc., and especially the corruption of officials.
·She found that the village chief embezzled the welfare of the villagers and coerced her to elect him during the election.
·Everywhere in China has the same situation; nowhere can one feel safety if they have different opinions against the government; there is no protection and everyone is under the same government.
·She was able to leave China smoothly because although she was persecuted, her belief in pursuing democracy and freedom is not a criminal offence.
·She believes her situation meets the definition of a refugee.
The Department’s decision and reasons
On 26 June 2024, the Department notified the applicant that it needed more information from the applicant to assess her application. The applicant’s written statement dated 9 July 2024, did not address all the matters raised by the Department, but reasserted her belief that she met the definition of a refugee and stated that she did not take any evidence with her when she left the village in China, for Australia.
On 15 August 2024, a delegate of the Department refused to grant the applicant a protection visa, essentially because the delegate found that the applicant’s claims that she will be persecuted for her political opinion and pursuit of democracy and freedom in China, were not credible.
The reason why the delegate did not find the applicant’s claims credible is because the applicant’s claims lacked detail or supporting evidence. For example, the applicant did not give details as to what harm she suffered in China, or how she expressed her political opinions, such as whether she participated in any protests or demonstrations, or how and when she was coerced into voting for the village chief who embezzled welfare funds.
The Department’s delegate also found:
·The applicant’s claim that she did not have the right to vote in China, was inconsistent with country information which indicated that the right to vote is contained in Chapter 2 of the Chinese Constitution.
·The ease in which the applicant was able to depart China was inconsistent with her being a person of adverse interest to Chinese authorities, due to her political opinion.
As a result, the delegate was not satisfied that the applicant is a refugee as defined in s 5H(1), or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning to China, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A). The delegate was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36, as well as the Migration Regulations 1994 (Cth) at Schedule 2. An applicant for the visa must meet one of the alternative criteria in ss 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.
MY FINDINGS AND REASONS
The issue for determination is whether the applicant is a person in respect of whom Australia has protection obligations.
For the reasons set out below, I find that the applicant is not such a person.
Consequently, I have concluded that the decision under review should be affirmed.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499, I have taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department, 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.
Does the applicant satisfy the refugee criterion for protection?
The applicant’s evidence
The applicant submitted to the Tribunal a completed “Response to hearing notice” form dated 4 November 2024. The Notice of Hearing sent to the applicant included an invitation to provide any additional information that she requested the Tribunal to consider. No additional information or evidence was provided by the applicant prior to the hearing.
The applicant’s evidence at the hearing is as follows:
·A lawyer assisted her with completion of the protection application form, but is not representing her at the hearing.
·She grew up in a [village], in Tongren city. She is unsure how many people live there but she thinks it would probably be less than 10,000.
·Before arriving in Australia, in China she had opened and operated a [store] as a salesperson. She ceased running the store after Covid. Currently, here in Australia she works part-time in [job task].
·During the three-month period between [November] 2023 (her return to China from [Country]) and [February] 2024 (her arrival in Australia), she did not work but sorted out a few things from the closure of her store.
·During the two-month period between her arrival in Australia and 15 April 2024 (lodgement of her protection application), she visited places here and there in Queensland. She rented a small property on her own.
·Her husband is [Nationality] and lives in [City, Country]. Her [child] is [Age] and lives in Huizhou, China. She is in contact with her husband and [child], almost daily or at least every two to three days. Her husband and [child] are in good health. Her [child] works in a [workplace] making [product].
·About seven to eight years ago, she was coerced into voting for the village chief because she was promised that if she voted for him, she would receive financial benefits. The Chinese government pays subsidies to villagers who grow crops, but the farmers in her village never received those subsidies. Nobody dares to report the village chief – who is still there – to the police, because they fear he will take revenge, such as taking land back or withdrawing their contracts to use the land.
·She did not engage in any political activities in China. Nor was she a member of any political group or association.
·She believes the authorities are aware of her beliefs in democracy and freedom because she would “speak out” about different political opinions during gatherings of different villages such as at ceremonial events. These gatherings or meetings were organised to discuss issues relating to the land, sometimes to hand over fees, or distribute the government subsidies. Sometimes there would be 20 to 50 people in attendance. The villagers were given the opportunity to raise issues with the village chief and other leaders in the village.
·On at least three occasions – the last of which was at a village meeting or gathering in 2019 – the applicant asked several village leaders, including the chief, why neighbouring villagers received the government subsidies while those in her village were not receiving them. They told her that she did not understand the policy.
·The Public Security Bureau (“the PSB”) have often called her mobile to “check on” her; to know her and her family’s location and their situation. The last time they called her was one afternoon in July 2022. The PSB also asked her questions about her departures from China and [Country].
·She has not been threatened, charged or arrested by the Chinese authorities.
·However, she thinks she has been indirectly harmed. Her reference in her protection application to having suffered harm, was to an incident where, while not physical or personal harm, they raised [livestock 1] in the village and the [farm] was on fire. The firefighters said it was just an accident.
·Since arrival in Australia the applicant has not engaged in any activities that publicly show her political opinions. Nor is she currently a member of any political group or association in Australia. The applicant has never – either in China or Australia – tried to organise or encourage others to take any action or express their views.
·She fears if she returns to China that the village chief will take his revenge because she had told others in her village that neighbouring villagers had received their subsidies; people in her village then went to get further information and as a consequence, the village chief had no alternative but to dig out some funds to distribute to people in her village. That incident was about seven years ago, and since then, the village chief has had to provide funds to people in her village every year.
·The village chief has not harmed or threatened her directly. However, approximately 10 years ago, he took back a [livestock 2] contract that her father had held, before it had expired.
·She does not want to relocate to the village where her [child] lives, because she does not want to make trouble for [her child], and the authorities will still call to find out her whereabouts.
Is there a real chance of harm in the reasonably foreseeable future upon return to China?
The concept of “real chance”, in assessing well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court[1] as a substantial chance, as distinct from a remote or far-fetched possibility. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J[2].
[1] See Chan v MIEA (1989) 169 CLR 379 at 389
[2] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) at p 171
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”. Similarly, 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 the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any allegations made by an applicant[3].
[3] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
Having assessed all the applicant’s evidence cumulatively, for the reasons given below, I am not persuaded that her fear of persecution is well-founded.
Country information
I invited the applicant to comment on the following country information, which does not support her claims for protection:
·Chinese authorities have tight restrictions not only on people suspected of criminal offences, but on people deemed to be politically sensitive; and passports may be refused to people deemed to be political threats, including activists or human rights defenders.[4]
·DFAT assesses that small scale or private discussion (e.g. among family and friends) of political issues and even criticism of government is generally tolerated. Further, if criticism is more widely disseminated, e.g. on an online platform or deemed too inflammatory or regarding a particularly sensitive subject, authorities might reprimand (as opposed to significantly or seriously harming) the individuals involved.[5]
[4] ‘China: Whether authorities seize the passports, identity documents, or travel documents of persons who are the subject of a criminal summons, a police investigation, or criminal charges (2021–October 2023)', Research Directorate, Immigration and Refugee Board of Canada, 6 October 2023, 20231030124306; ‘2023 Country Reports on Human Rights Practices - China', US Department of State, 22 April 2024, p. 55, 20240423144042 ; 'Freedom in the World 2024 - China', Freedom House, 29 February 2024, section G1, 20240301084828 ; DFAT Country Information Report - People's Republic of China', Department of Foreign Affairs and Trade, 21 December 2021, p. 40, 20211222100210
[5] Department of Foreign Affairs and Trade Country Information Report People’s Republic of China (22 December 2021) at paras 3.84
The applicant acknowledged that it is true that small and private discussion of political issues is allowed, but the pre-requisite is to not let the government authorities know about it and also, when talking about individual political figures, the discussions should not sabotage their interests.
The applicant said that it was not only warnings that the authorities will give individuals; there is also the risk of going to prison. There are many instances of this being reported in social media.
The applicant stated that she is not a criminal and that just pursuing democracy and freedom won’t restrict her departure.
The applicant’s responses in paragraphs 26 to 28 above do not give me cause to disregard or discount the country information.
The applicant’s political beliefs
The only evidence before me of the applicant’s practice or pursuit of her political beliefs is that up until 2019, during village gatherings where there would be 20 to 50 attendees, she spoke out about different political opinions and asked the village’s chief and leaders – on at least three occasions – why government subsidies had not been paid to people in her village.
When I asked the applicant for examples of what she said when she spoke out at the village gatherings, her examples related to the issue of non-payment of government subsidies in her village.

There is no evidence of the applicant having engaged in any activity in pursuit of her political opinions since 2019.
Nature of previous harm and fear of return
There is no role for conjecture or surmise, in determining whether a fear is well-founded and a fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[6]
[6] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293
I offered the applicant multiple opportunities throughout the hearing to tell me of any threats or harm suffered from any Chinese government authorities, including the village chief.
The applicant’s evidence is that she has not been threatened or harmed directly. Nor has she ever been charged or arrested. Her evidence about being harmed or threatened indirectly is that:
·About 10 years ago, the village chief cancelled her father’s [livestock 2] contract before it had expired.
·Their [farm] had a fire and the firefighters had said it was just an accident.
·The PSB have called her on occasions to ask about her and her family’s location and her travel between China and [Country].
I put the applicant on notice that the past harm she identified was not at the level described by the law as significant or serious. I also asked the applicant if there was anything else she wanted to tell me during the hearing. She did not offer any further details that would cause me to believe that the above examples of indirect harm amounted to serious or significant harm as described in ss 5J(5) and 36(2A).
I acknowledge that past events are not a certain guide to the future[7]. However, I am not satisfied that the above past events – either individually or collectively – provide a rational basis for finding that there is a risk of significant or serious harm in the reasonably foreseeable future.
[7] MIEA v Guo (1997) 191 CLR 559 at 574
First, the cancellation of the applicant’s father’s [livestock 2] contract before it had expired, is an incident that occurred 10 years ago, prior to the applicant’s coercion into voting for the village chief. Second, the firefighters said the fire at the [farm] was an accident. The firefighters’ assessment is not unreasonable or unbelievable in circumstances where there is no evidence from the applicant that she was warned to stop asking questions about the government subsidies, or that anyone had taken offence to her asking such questions publicly. The applicant’s evidence is that the village chief and/or leaders told her she does not understand the policy. Third, there is no evidence that the telephone calls from the PSB are in any way related to the applicant’s questioning of the village chief about the non-payment of government subsidies. Fourth, the contract cancellation and fire are two incidents which occurred over a period of seven to ten years, which does not demonstrate harassment as a response to her public questioning of the village’s chief and leaders on numerous occasions.
The applicant said that she fears that upon return to China, the village chief will take revenge on her for her role in questioning and exposing his failure to distribute government subsidies to the people in her village. I am not persuaded that her fear is well-founded. This is because her actions occurred quite some time ago and at the latest, in 2019 when she last expressed her concerns about the subsidies; she has not been harmed or threatened by the village chief; there is no evidence as to what harm if any, has been suffered by those persons who went out and gathered further information after she raised the issue – and which the applicant says led to the village chief having no alternative but to distribute the subsidies; and there was no suggestion by the applicant that the reason she ceased operating her [store] was in any way related to her public questioning of the village chief.
In addition, on two separate occasions, I asked the applicant if the PSB said anything else to her on the telephone (other than ask about her and her family’s location and her travel movements). It is noteworthy that the PSB did not make any reference to her interactions with the village chief, or to her comments at village gatherings, or to any activities in relation to her political opinion. Nor did the PSB warn her to cease any activity such as her questioning about the non-payment of government subsidies. The last call from the PSB was in July 2022.
Considering the country information and all the applicant’s evidence cumulatively, I am not satisfied that there is a real substantial basis for the applicant’s fear of harm. There is no real substantial connection between the indirect harm claimed by the applicant, and her expression of her political beliefs, or her public questioning of the village chief’s failure to distribute government subsidies.
For all the reasons above, I am not satisfied that there is a real or substantial chance of significant or serious harm in the reasonably foreseeable future if the applicant returns to China.
It follows that the applicant does not meet the refugee criterion for protection in s 36(2)(a). Consequently, it is not necessary to consider whether the applicant meets the other requirements in s 5J.
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), I have considered the alternative criterion in s 36(2)(aa).
The “real chance” test for the refugee criterion is substantially the same as the “real risk” test for the complementary protection criterion.[8] As explained above, I am not satisfied that there is a real chance of harm in the reasonably foreseeable future, if the applicant returns to China.
[8] MIAC v SZQRB (2013) 210 FCR 505; See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19]
For the same reasons, I am not satisfied that there is a real risk of significant harm to the applicant if she returns to China. It follows that I find that the applicant does not meet the complementary protection criterion in s 36(2)(aa). It is therefore not necessary to consider whether the applicant meets the other requirements in ss 36(2A) and (2B).
Finally, 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 ss 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 26 November 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.
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