1709680 (Refugee)

[2020] AATA 5610

1709680 (Refugee) [2020] AATA 5610 (30 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1709680

COUNTRY OF REFERENCE:                   Libya

MEMBER:Dr Colin Huntly

DATE:30 November 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that Applicant 4 satisfies s.36(2)(a) of the Migration Act; and

(ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant named at (i) above.

Statement made on 30 November 2020 at 8:33am

CATCHWORDS

REFUGEE – protection visa – Libya – particular social group – returnee with special vulnerabilities – Westernized or progressive girls – imputed political opinion – Government programs – members of the family unit – sexual and gender based violence – fear of abduction – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 104, 423
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
CQG15 v MIBP [2016] FCAFC 146
Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445
Iyer v MIMA [2000] FCA 52
Iyer v MIMA [2000] FCA 1788
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
MZYPW v MIAC (2012) 289 ALR 541
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZLGP v MIC [2008] FCA 1198
SZSHV v MIBP [2014] FCA 253

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 Immigration and Border Protection on 21 April 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. Applicants 1, 2, 4, 5 and 6 claim to be citizens of Libya alone, while Applicant 3 claims joint-[Country 1] and Libyan citizenship.  

   BACKGROUND

   Applicant migration history

3. Applicants 1, 2 and 3 first entered Australia [in] January 2011, travelling on a [Student] visa. 

4. The family’s travel to Australia was partly funded by a scholarship from the former Gaddafi Government, which is referred to colloquially in the relevant country information as a ‘Gaddafi Scholarship’.  Evidence before the Tribunal indicates that the applicants have at all times, complied with the relevant visas issued to them.

5. On [date] Applicant 4 was born in Australia and was added to the Student visa.

6. [In] January 2012, Applicants 1, 2, 3 and 4 departed Australia and returned to Libya on the Student visa.  These applicants returned to Australia [in] April 2012.

7. On [date] Applicant 5 was born in Australia and was added to the Student visa.

8. [In] March 2015, the [Student] visa was re-issued to the applicants.

9. On [date] Applicant 6 was born in Australia and was added to the Student visa.

10. On 11 February 2016, Applicant 1, on behalf of the family unit, applied for the protection visa which forms the basis of this review.

11. [In] April 2016 the Minister allowed Applicant 3 (a citizen of [Country 1] with joint-Libyan citizenship rights) to be included in the family unit protection visa application.

12. The applicants attended a Protection visa interview with a delegate of the Minister for Immigration and Citizenship on 6 October 2016.  The application was refused by the delegate by written decision dated 21 April 2017.  The applicants seek review of this decision by the Tribunal as presently constituted.

    Proceedings before the Tribunal

13. The applicants appeared before the Tribunal on two occasions. First, on 29 October 2020 by telephone, and then on 18 November 2020 to give evidence and present arguments.

14. The applicants were represented in this application by a registered migration agent. All hearings were held with the assistance of interpreters fluent in the English and Arabic standard languages.

    Identity

15. Applicant 1 and Applicant 2 are married.  Applicants 3, 4, 5, and 6 are all children born to this relationship.  All members of the family unit claim to be citizens of Libya.  As noted above, Applicant 3 claims to jointly hold Libyan and [Country 1] citizenship.

16. I have reviewed the evidence contained in the Departmental file, including the relevant passports, and I find on the basis of the evidence that all applicants are citizens of Libya as asserted by the applicants, which is also the receiving country for the purposes of the refugee and complementary protection assessments.  On the basis of relevant evidence in the Department file, I am also satisfied that Applicant 3 is a citizen of both Libya and [Country 1].  Accordingly, while Libya is potentially a receiving country for the purposes of refugee and complementary assessments for Applicant 3, some differential consideration of the third country exclusion provision at s.36(3) of the Act is necessary with respect to this applicant.

17. There is no evidence before the Tribunal to suggest that any of the applicants besides Applicant 3 have any right to enter and reside in a third country for the purposes of s.36(3) of the Act.

    DECISION SUMMARY

18. The issue in this case is whether the applicants engage Australia’s protection obligations because one or all of them have a well-founded fear of persecution in Libya now, or in the reasonably foreseeable future for the essential or significant reason of their membership of a particular social group.  In the alternative, whether one or all of the applicants satisfy the requirements for a protection visa in Australia on complementary grounds if they were to return to Libya, now or in the reasonably foreseeable future. 

19. For the following reasons, I have concluded that the decision under review should be remitted to the department for reconsideration with the direction that that Applicant 4 satisfies s.36(2)(a) of the Migration Act because of her particular vulnerabilities and that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as Applicant 4.

    DECISION-MAKING FRAMEWORK

20. The criteria for a protection visa are set out in s.36 of the Act and Sch.2 to the Migration Regulations 1994.  Extracts of the relevant legislative provisions are attached to this decision below.  An applicant must either be a person in respect of whom Australia has protection obligations under the refugee criteria or on complementary protection grounds.

    Mandatory considerations

21. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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.

    President’s Direction

22. I have had regard to the President’s Direction ‘COVID-19 Special Measures Practice Direction – Migration and Refugee Division’, 27 April 2020.  I have also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018.  In particular:

    ·     that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and

    ·     that ‘Generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

    [1]At [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 s.33(1)(b)).

    [2]At [8.1].

    Applicant credibility

23. The Tribunal’s task of fact-finding may involve an assessment of applicant credibility.  In this context, the Tribunal is guided by the observations and comments of both the High Court and Federal Court of Australia in a number of decisions.[3]  In these and other decisions, the courts have made it clear that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility. 

    [3]E.g.: Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

24. In Guo Wei Rong and Pam Run Juan v Minister for Immigration and Ethnic AffairsandMcIllhatton,[4]  Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’[5]  Numerous decisions have endorsed the principle that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 

    [4](1996) 40 ALD 445.

    [5]At (482).

25. I have also had regard to the decision of Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors,[6] and the comments of the High Court on the correct approach to determining findings on credibility.  Kirby J observed:[7]

    First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not.  An over-nice approach to the standard of proof to be applied here is undesirable.  It betrays a misunderstanding of the way administrative decisions are usually made.  It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination.  It is not an error of law for a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, as long as, in the end, he or she performs the function of speculation about the “real chance” of persecution required by Chan.

    [6](1996) 185 CLR 259.

    [7]At [25].

26. The Tribunal is not required to accept uncritically any or all allegations made by an applicant.  Nor is it 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, or obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  In Chand v Minister for Immigration and Ethnic Affairs, the Full Court of the Federal Court observed that ‘where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.’[8]  Nevertheless, as Burchett J counselled,[9] it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

    [8][1997] FCA 1198 ( accessed 15 February 2017).

    [9]In Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5].

27. The Full Court of the Federal Court noted that ‘refugee cases may involve special considerations arising out of problems of communication and mistrust, and problems flowing from the experience of trauma and stress prior to arrival in Australia.’[10]  On this point, I also take into account the comments of Professor Hathaway in ‘The Law of Refugee Status’ (1991, Butterworths) at 84–86 relating to the previous statutory regime. 

    [10]In Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167 ( accessed 15 February 2017).

28. Nevertheless, there is no rule that a decision-maker may not reject an applicant’s testimony on credibility grounds unless there are no possible explanations for any delay in the making of claims or for any evidentiary inconsistencies.[11]  Nor is there a rule that a decision-maker must hold a ‘positive state of disbelief’ before making an adverse credibility assessment in a refugee case.  However, if the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.[12]  In addition, if the Tribunal makes an adverse finding in relation to a material claim made by an applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that the claim might possibly be true.[13]  I am also mindful of the observations of Gummow and Hayne JJ in Abebe v The Commonwealth of Australia:[14]

    … the fact that an Applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an Applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.

    [11]Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–9.

    [12]Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 241 per Sackville J (with whom North J agreed).

    [13]MIMA v Rajalingam (1999) 93 FCR 220.

    [14](1999) 197 CLR 510 at [191].

29. I note, however, that a decision-maker is entitled to consider whether an applicant subjectively has a well-founded fear of persecution before examining whether such a fear is subjectively held, or to proceed on the assumption that such a fear is held. 

30. If the decision-maker finds on the evidence that the applicant does not genuinely hold a subjective fear there will be no need to consider whether there is an objective basis for the claimed fear or, indeed, whether aspects of the claim are satisfied.  I note that in Iyer[15] the Tribunal had concluded that certain return visits to Sri Lanka from Australia were voluntary and supported a conclusion that the applicant did not have the necessary fear of persecution required by someone seeking refugee status.  The Court confirmed that the Tribunal had applied the correct principles concerning the applicant’s fear of persecution and stated that it did not need to go any further in its analysis of the basis of the claim.  This decision was affirmed on appeal.[16]

    [15]Iyer v MIMA [2000] FCA 52 (O’Connor J, 4 February 2000), at [32]–[34].

    [16]Iyer v MIMA [2000] FCA 1788 (Heerey, Moore and Goldberg JJ, 15 December 2000). See also SDAQ v MIMA (2003) 129 FCR 137 at [19] per Cooper J.

31. I am mindful of the salutary comments of Flick J,[17] in SZSHV v MIBP [2014] FCA 253 (by reference to the former Refugee Review Tribunal) as follows:

    31In the context of judicial review being undertaken of a decision of a Refugee Review Tribunal, adverse findings as to credit by the Tribunal do not shield its decision-making processes from scrutiny.  Thus, for example, in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [78], (2013) 212 FCR 99 at 121, Robertson J observed:

    [78]It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.

    [17]Cited with approval by McKerracher, Griffiths and Rangiah JJ in CQG15 v MIBP [2016] FCAFC 146 at [41].

32. As highlighted by the Court in CQG15 v MIBP [2016] FCAFC 146:[18]

    … Recitation of the expression that credibility is a matter [/question of fact for the Tribunal] par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis.  While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:

    (a)      failure to afford procedural fairness;

    (b)      reaching a finding without any logical or probative basis;

    (c)      unreasonableness; and/or

    (d)      jurisdictional error as discussed by Flick J in SZVAP.

    [18]At [38] per McKerracher, Griffiths and Rangiah JJ [parentheses added].

33. I note the particular reference by their Honours (in the extract above at (b)) to the importance of making findings of fact on logical or probative grounds with specific reference to credibility findings.  I further note that, later in the same judgement,[19] their Honours referred in a generally approving way to an observation by Gordon J in SZLGP v MIC [2008] FCA 1198 relating to the United States 9^th Circuit Court of Appeals decision in Stoyanov v INS[20] (Stoyanov):

    The Court in Stoyanov went on to state that “minor inconsistencies cannot support an adverse credibility finding” and that “trivial errors by an asylum applicant do not constitute a valid ground upon which to base a finding that an asylum applicant is not credible”:

    [19]CQG15 v MIBP [2016] FCAFC 146 at [43].

    [20](9^th Cir 1999) 172 F3d 731. Extract citation reference is to Stoyanov at 736.

34. However, a number of judicial caveats are of relevance when considering the manner in which credibility findings may be made in protection visa reviews and the ultimate use to which they may be put, either deliberatively or determinatively as the case may be.  Firstly, as their Honours noted in CQG15 v MIBP [2016] FCAFC 146 at [59]–[60], one must be mindful of:

    … the conclusion reached by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, particularly (at [131]), where Crennan and Bell JJ stated that if reasonable minds could differ as to the conclusions to be drawn from the evidence, illogicality or irrationality or unreasonableness could not arise simply because one conclusion had been preferred to another possible conclusion.

    In Minister for Immigration and Border Protection v SZUXN [2016] FCA 516, Wigney J collected the following relevant principles (at [52] and [54]–[56]):

    52As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at 137 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.

1. Consideration of how credibility findings might be affected by legal unreasonableness was also considered by the Court in the recent case of BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184. Their Honours made the following observations of utility:[21]

   32First, the relevant question for the AAT under ss.36(2)(a) and (aa), 65 and 415 of the Act is whether it is “satisfied” that the criteria for a protection visa are met and as a consequence the decision of the AAT is subjective in nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-277 (Brennan CJ, Toohey, McHugh and Gummow JJ); and W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 (W148/00A) at [65] (Tamberlin and R D Nicholson JJ).

   33Secondly, the fact that a decision-maker has expressed her or his reasons sequentially does not mean that the decision-maker has decided each factual issue in isolation from the others.  To the contrary, “[o]rdinarily they review the whole of the evidence, and consider all issues of fact, before they write anything.  Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole”: S20/2002 at [14] (Gleeson CJ); see also at [49] (McHugh and Gummow JJ); and Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 (Chen) at [33]-[35] (the Court). Indeed, there is no necessary error in the Tribunal not considering corroborative material until after it has reached its conclusions of credibility where the Tribunal has (lawfully) found that “the well has been poisoned beyond redemption”: S20/2002 at [49]; and Chen at [35].

   34Thirdly, notwithstanding the subjective nature of the assessment required by the AAT and the factual nature of an assessment of credibility, the AAT’s decision must still be made within the bounds of legal reasonableness. 

   [21]Per Rangiah, Perry and Bromwich JJ.

2. In addition to the foregoing judicial guidance, I have also had regard to the Migration and Refugee Division ‘Guidelines on the assessment of credibility’, issued in July 2015, which provides:

   It is in the nature of an application for protection that determinations are made at least in part on an assessment of the applicant’s credibility and on the credibility of the claims themselves.[22]

   [22]At [8].

3. Further:

   In relation to protection visa applications made on or after 14 April 2015 if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made and the tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made the tribunal must draw an inference unfavourable to the credibility of the claim or evidence.  This refers to the requirements at section 423A of the Act.[23]

   [23]At [13].

4. The Guidelines also advise that:

   Procedural fairness requires an applicant to be made aware of the case against him or her to be provided with an opportunity to respond to the issues arising to his or her case.  The tribunal is under a duty to ensure that an applicant has an opportunity to be heard on the issues to be decided by the tribunal.

   A Member should maintain and be seen to have an open mind when conducting a hearing.  There is a duty to clearly and unambiguously raise with the applicant the critical issues on which his or her application may depend.  An applicant may be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.

   However, the tribunal should take care to ensure that vigorous testing of the evidence and frank exposure of its weaknesses does not result in the applicant being overborne or intimidated.[24]

   [24]At [17]–[19].

5. With respect to contradictions, inconsistencies and omissions, the Guidelines state:

   Contradictions, inconsistencies and omissions may arise in the evidence before the tribunal. 

   The tribunal will consider all the evidence before it assesses whether contradictions or inconsistencies are material to an applicant’s claims and would lead to an adverse credibility finding.[25]

   [25]At [27]–[28].

   New claims and evidence

6. Section 5AAA of the Act clarifies that it is the responsibility of applicants to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  On this view the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim.  This is consistent with the well-settled proposition that it is for applicants to make their own case.[26]

   [26]Prasad v MIEA (1985) 6 FCR 155 at 169–70; SZBEL v MIMIA (2006) 228 CLR 152 at [40]; Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 (Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73]; MIMA v Lay Lat (2006) 151 FCR 214 at [76]; and Abebe v Commonwealth (1999) 197 CLR 510 at [187].

7. Applicants are also expected to present their case in full before the primary decision-maker and not to wait until after the primary decision has been made.  Two obligations here are particularly relevant:

   i.The ongoing requirement under s.104 of the Act for applicants to ensure that their relevant details are correct and then to change any incorrect information at the first reasonable opportunity; and

   ii.Section 423A of the Act requires the Tribunal to draw an adverse inference about the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. 

8. In such cases, if the Tribunal is satisfied that applicants do not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision, the Tribunal is required to draw an inference unfavourable to the credibility of the claim or evidence. 

9. Applicants are, therefore, required to present all claims and evidence to the primary decision-maker unless they have a reasonable explanation for not doing so.

   INTRODUCTION

   Hearings

   First hearing

10. At the first hearing I advised the applicants and their representative what documents I had in my possession and it was confirmed that I had all the relevant material before me.

11. Also at the start of the hearing I confirmed with the applicants and their representative the summary of the claims for protection contained at page 5 of the delegate’s record of decision, which is as follows:

    ·     The applicant fears persecution on the grounds of his imputed political opinion as being perceived a pro-Gaddafi supporter because he was a recipient of a Gaddafi Scholarship. He also claims that in 2011 he participated in a rally in [Australia] in support of the uprising in Libya. The Applicant fears that because of his participation he will be perceived as being an anti-Gaddafi activist. The Applicant also claims that during the uprising his brother was smuggling weapons for anti-Gaddafi groups.

    ·     The applicant also fears his family will suffer harm (kidnapped and killed) due to generalised violence in Libya.

    ·     The Applicant fears that he and his family will be targeted on the grounds of their belonging to a particular social group (PSG) “returnees from the West”.

    ·     The Applicant claims that [City 1], his place of residence in Libya, is controlled by a militia that persecutes women by making them to wear a burqa. He stated that while his wife wears a hijab, she might be compelled to wear a burqa.

    ·     The Applicant also fears general insecurity in Libya.  He claims that his children will suffer significant harm because of the lack of education and health services in Libya.

12. I asked if these were a fair and accurate summary of the claims for protection and the applicants responded in the affirmative.

13. I noted that the delegate essentially did not accept that Applicant 1, or his siblings in Libya, had a significant political profile in Libya sufficient to warrant protection in Australia on the basis of the refugee criterion at s.36(2)(a) of the Act. I noted that the delegate found that third country protection was available in [Country 1] for Applicant 3 as a citizen of that country. The delegate was not satisfied that Applicant 2’s claims for protection gave rise to Australia’s protection obligations. The delegate was not satisfied that any of the applicants faced a real risk of significant harm in Libya now, or in the reasonably foreseeable future for the purposes of the complementary criteria at s.36(2)(aa) of the Act.

14. I invited the applicants to provide additional submissions relating to the availability (theoretical and practical) of third country protection to Applicant 3 on the basis of his joint Libyan and [Country 1] citizenship.

15. I indicated to the applicants that their application presented a number of challenges, most of which were adequately raised in the delegate’s record of decision.  I suggested that care would need to be exercised in considering the claims made and naturally arising for each of the applicants individually and the family unit collectively, given the provisions of s.36(2)(b) of the Act.

16. The first hearing was then concluded.

17. Following the first hearing, the representative for the applicants provided helpful submissions of the question of third country protection for Applicant 3 in [Country 1], and any implications this might have for the family unit.  On the question of Applicant 3 personally, these submissions are summarised in the following extract:

    [Applicant 3]

    12. As confirmed in the evidence provided with the Applicants’ Protection Visa Application, [Applicant 3] holds dual Libyan and [Country 1] Nationality. It is not disputed that [Applicant 3] currently holds a right to enter and reside in [Country 1] as a national of that country.

    13. However, we would question if there could be any “possible” steps that [an age] year old child could take to avail themselves, as an unaccompanied minor, of a right to enter and reside in [Country 1]. At least from a practical standpoint, it is arguable that it would not be possible for [an age] year old child to be able to travel to, enter and remain in [Country 1] without a parent or any other legal guardian.

    14. Conversely, it may also be argued that [Applicant 3’s] circumstances would trigger the qualification to Section 36(3) contained under Sections 36(4)(b). In particular, that Section 36(3) should not be found to apply to him in any case on the basis that there are substantial grounds for believing as a necessary and foreseeable consequence of him availing himself of the right to enter and reside in [Country 1] that there would be a real risk of him suffering significant harm.

    15. In particular, as noted further in our submissions below, [Applicant 3’s] parents and siblings do not have any right to enter or reside in [Country 1]. [Applicant 3] would then face return to [Country 1] as an unaccompanied minor where he would not have the support, supervision or protection of a parent, relative or any other legal guardian.

18. As to whether the citizenship of Applicant 3 might give rise to a qualifying right to reside in [Country 1] for the other members of the family unit, the submissions were relevantly as follows:

    32. We note that [Country 1] does have a process in place that enables [Country 1] citizens in certain circumstances to sponsor parents to migrate to [Country 1]. However, meeting the eligibility requirements for such a visa would at best only amount to an expectation or potential to acquire a right to enter and reside in [Country 1]. It does not constitute an existing right. Section 36(3) would not then apply merely based on a finding that the Applicants had failed to take all possible steps to acquire such a right.

    33. We would further note that, in any case, even an expectation of such a right does not exist in this case and has never existed. Based on information published on the website of the [Country 1] Government, [Applicant 3] does not now and has never satisfied the requirements needed to be able to sponsor his parents and siblings for a permanent visa in [Country 1].8

    34. In particular, the website of the [Country 1] government confirms that for a [Country 1] citizen to be able to sponsor their parents to immigrate to [Country 1] they must be:

    §at least 18 years old,

    §live in [Country 1], and

    §meet income requirements. This would require [Applicant 3] to provide Notice of Assessments from the [Country 1] [relevant] Agency showing he met the required income threshold for each of the 3 tax years before he applied to sponsor his family. For an application including 5 people this would have been [amount] (2018), [amount] (2019) and [amount].

    35. As [an age] year old child who has been residing in Australia since 2011, [Applicant 3] does not currently and has never satisfied the requirements to sponsor his parents and siblings to migrate to [Country 1].

    36. On this basis, we would submit there is no basis to find that [the applicant], [his wife] or their children [Applicant 4], [Applicant 5] and [Applicant 6] have any right to enter or reside in [Country 1] or any country outside of Libya and Australia. For that reason alone, the elements under Section 36(3) are not satisfied in respect to these applicants and would not then exclude either of them from being found to be owed protection obligations.

19. These submissions are persuasive.  It is apparent from the available evidence that Applicant 3 cannot meet the prerequisites to act as a sponsor in a visa application for his family unit to reside in [Country 1].  It is further clear from evidence presented at the hearings that it is the intention of Applicants 1 and 2 as the parents of Applicant 3, that the family unit will not be separated regardless of the outcome of this review.  In light of this fact, and the presumptive Libyan citizenship of Applicant 3, I find that Libya is a receiving country for Applicant 3 for the purposes of this review.  Accordingly, I have proceeded on the basis that Applicant 3 is not excluded from applying for the visa because of anything in s.36(3) of the Act.  In proceeding in this manner, I note that no differential decision was made regarding Applicant 3 in the refusal decision under review by the delegate.

    Second hearing

20. At the second hearing on 18 November 2020, I summarised all that had transpired in proceedings to that point.  I proceeded to question Applicant 1 and Applicant 2 about their family circumstances in Australia and the prospect of a return to Libya.  They confirmed that the family were sincere and observant Sunni Muslims.  While the children are students at an Islamic college, their spoken Arabic is limited and rudimentary, not sufficient to converse with extended family overseas, or on matters of significance within the home.  Their understanding of the Libyan vernacular and the conversational idiom is negligible.

21. Applicant 2 raised particular concerns about daily life for her and her children in Libya, where women are not permitted by the governing militias and religious extremists on all sides to be outspoken or ‘visible’ in public places.  She made the point that, in the market, she would be required to be in the company of her male children when her husband was working, and that these children would be required to conduct the basic intercourse of daily commerce on her behalf in these settings.  The fact that her male children would be unable to do this effectively, and that she would be required to take a more prominent role would draw unwanted attention to her and, more concerningly, to her children.  Applicant 2 expressed particular concern about the potential harm that this might expose her daughter (Applicant 4) too, as an older girl.

22. I invited the applicants and their representative to make further written submissions on this issue and concluded the hearing.

23. Additional written submissions were received from the applicant’s representative on 18 November.  Relevantly, with respect to Applicant 4 these provide as follows:[27]

    [27]Country information references not included.

    [Applicant 4]

    3. As noted by the Tribunal, the Applicants have raised claims as to the risk of harm specifically faced by their daughter, [Applicant 4], if forced to return to Libya. In particular, the Applicants’ evidence to the Tribunal includes claims of a real risk of serious harm faced by [Applicant 4] in Libya including abduction/kidnapping, rape, sex trafficking and other acts of physical violence, significant restrictions on her freedom of movement, restrictions on her ability to access adequate healthcare, education or employment and irreparable psychological harm.

    4. The Applicants have also previously raised in the evidence before the Tribunal that the essential or significant reasons for the harm faced by [Applicant 4] is her actual or perceived membership of any one or a combination of the following particular social group(s):

    ·“Westernized or Progressive Girls”,

    ·“(Westernized) Girls approaching maturity seeking a more active public life”,

    ·“(Westernized) Girls seen to not adhere to “public morals” and/or strict religious or moral norms” and

    ·“Girls born and raised abroad (in Western countries) who are unfamiliar with current conditions and/or cultural and societal norms in Libya ”

    5. We believe either of these groups would satisfy the requirements under Section 5L of the Act that sets out when a person may be treated as a “member of a particular social group (other than a family)”. In particular, members of each of the abovementioned particular social groups share a characteristic(s) that would be considered either innate or immutable, fundamental to their identity or conscience and/or that distinguishes them from society.

    6. In particular, we believe the common characteristic(s) or attribute(s) uniting the abovementioned groups is a combination of their gender, their shared experience in growing up abroad in Western countries and, consequently, their lack of familiarity in respect to the local language or dialect, security conditions and/or cultural and societal norms present in Libya. These characteristics would, at least cumulatively, cause members of the abovementioned groups to be distinguishable from the society at large. The characteristic(s) uniting members of these groups are also not purely based around a shared fear of persecution.

    7. We believe that [Applicant 4’s] circumstances would support that there is a real risk she would face persecution for reasons of her actual or perceived membership of either of the abovementioned particular social groups. In particular, we believe that at the very least [Applicant 4] would be perceived as a member of such group(s) due to any one or a combination of the following circumstances:

    ·She is [an age] year girl who was born and raised in a Western country (ie Australia);

    ·She has completed her entire education to date in Australia being taught a westernized curriculum of study with students who are predominately from western backgrounds;

    ·Her primary language used in Australia while at home, school or while otherwise out in public has been English;

    ·She has a less than basic understanding of the Arabic language let alone the local dialects/accents or slang used amongst the local population within [City 1] or within other parts of Libya;

    ·She has only ever spent[number] months in Libya back in early 2012 when she was [age] and would have very little, if any, memories of this. Consequently, she would on return to Libya lack any familiarity with the conditions, etiquette and/or cultural or societal norms in place within [City 1] or in Libya generally.

    8. Available country information supports that the fears raised by the Applicants in respect to [Applicant 4] are objectively justified. In particular, we refer to the information referenced in our earlier submissions including:

    ·The UNHCR’s most recent Position Update published in September 2018 that refer to the risks of sexual violence, unlawful killings, intimidation and harassment and enforced disappearances faced by women and girls in Libya at the hands of both state and non-state actors. The UNHCR further confirms that women accused of not complying with strict interpretations of religious and societal gender norms or who are active in public life are identified as being a particular target of such harm. The UNHCR also goes on to recognize that “individuals perceived to be violating “public morals”” or “women engaged in the public sphere” to be particular groups likely to be in need of international protection for convention based grounds covered under the Refugees Convention.

    ·The UNHCR report also refers to children being disproportionately affected by the conflict and violence in Libya and being at risk of “sexual and gender based violence” as well as “abduction, unlawful detention, as well as torture and other forms of ill-treatment”. This information supporting the increased vulnerability to sexual violence and abduction faced by girls.

    ·The UNHCR report also refers to the particular risks of kidnapping faced by children on the basis of their or their family’s “perceived political affiliations and opinions”. We believe this is particularly relevant in [Applicant 4’s] case due to the political based claims raised in respect to her parents, particularly [the applicant]. We refer the Tribunal to the previous submissions provided to the Tribunal on 22 October 2020 in respect to the Applicant’s political based claims.

    ·The US Department of State’s 2019 Country Report on Human Rights Practices published in March 2020 referred to abductions being carried out in Libya by “GNA-aligned groups, LNA-aligned groups, and other armed groups” and that “Migrants, refugees, and other foreign nationals were especially vulnerable to kidnapping.” We believe this information supports the increased vulnerability to abduction faced by [Applicant 4] as someone likely to be perceived as a foreign national having been born and raised abroad, who primarily speaks in English or who speaks only in broken Arabic with a foreign accent and who would lack familiarity around local conditions and/or cultural and societal norms in Libya.

    9. Considering the above information as a whole, we believe it does support the increased vulnerability to harm faced by [Applicant 4] for reasons of her actual or perceived membership of the particular social groups mentioned earlier in our submissions.

    10. In particular, being perceived as a westernized, foreign born girl unfamiliar with the conditions in Libya and lacking any strong ties to the community would increase the risk that [Applicant 4] would stand out and/or appear as an easy target to her feared persecutors. This would increase her vulnerability to being exposed to harm including abduction, rape, sex trafficking or other acts of child related exploitation.

    11. Additionally, barriers with [Applicant 4’s] language and lack of familiarity around the conditions and/or cultural and societal norms in Libya would increase the risks she could engage in behaviour perceived as “unIslamic”, offensive and/or in breach of religious or moral codes. This would consequently expose her to a risk of violence, abduction or possibly death by extremists within the society who consider this as justified punishment for such behaviour.

    12. Lastly, we believe country information supports that as a foreign born and westernized girl that [Applicant 4] would faced an increased risk of abduction, violence and possibly death by groups who may see targeting her as likely to send a stronger message to their opponents, particularly in the case of groups against past or recent interference by Western governments and/or the UN in Libya.

1. Based on the foregoing, I find that Applicant 4 should be regarded as a member of a particular social group, returning civilians to Libya with inherent and immutable special vulnerabilities as a girl coming into maturity having lived their entire life outside of Libya, with no understanding or knowledge of the cultural, vernacular or idiomatic context in Libya and without adequate fluency in Libyan standard Arabic.

   Country information

2. The DFAT Country Information Report for Libya dated 14 December 2018 contains security assessments[28] and the circumstances facing women and children[29] in that country that are less current than, but not inconsistent with, that published by the UK Home Office.  The UK Home Office publications relevantly state that:[30]

   2.4.2 In ZMM, the Upper Tribunal (UT) held that: ‘The violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.’ (para 94)

   [28]At (15)–(17).

   [29]At (29)–(32).

   [30]UK Home Office, Country Policy and Information Note Libya: Actual or perceived supporters of former President Gaddafi, (Ver 3.0) April 2019 at (7).

3. And:[31]

   2.4.8 While the socio-economic and humanitarian conditions remain poor and may have been exacerbated by the restrictions imposed as a result of the Covid19 pandemic, the economy continues to function and some basic services such as healthcare, education and water – although significantly damaged or restricted – remain available. In general, conditions in Libya do not reach the threshold that would make removal a breach of Article 3 ECHR / Articles 15 (b) of the Qualification Directive. However, the humanitarian situation is variable across the country and members of vulnerable groups, such as women, children or IDPs in areas where humanitarian conditions are poor and humanitarian aid is less accessible, may face a risk of serious harm.

   [31]UK Home Office, Country Policy and Information Note Libya: Security and humanitarian situation, (Ver 4.0) September 2020 at (9).

4. And:[32]

   2.3.2 In the country guidance case of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC) (14 July 2014), heard 18-22 November 2013, the Upper Tribunal found that:

   ‘Whilst Libya is a male-dominated society and there is evidence of discrimination and violence against women and poor recognition of women’s rights, being female does not per se establish a risk on return. However, taking into account all the circumstances, including a woman’s age, health, level of education and economic status, one or more of the following characteristics or factors are likely, depending on the circumstances, to be significant in relation to the assessment of risk on return for a woman:

   ‘a) African ethnicity;

   ‘b) Being a victim of sexual violence, including having been raped by soldiers loyal to the Qadhafi regime or by other combatants;

   ‘c) Being a woman accused or suspected of sexual misdemeanours or offences against family honour.’ (para 215 (10))

   [32]UK Home Office, Country Policy and Information Note Libya: Women, (Ver 2.0) January 2018 at (5).

   FINDINGS

5. On the basis of the foregoing, I find therefore, that Applicant 4, as a girl coming into maturity having lived their entire life outside of Libya, with no understanding or knowledge of the cultural, vernacular or idiomatic context in Libya and without adequate fluency in Libyan standard Arabic, being placed into ordinary daily social and transactional intercourse in support of her returnee mother and brothers would be an individual experiencing specific vulnerabilities in the relevant sense.  Accordingly, I find that, due to her specific vulnerabilities, Applicant 4 has an objectively well-founded fear of harm for the essential and significant reason that she is a member of a particular social group, returning civilians to Libya with inherent and immutable special vulnerabilities as envisaged at s.5J(1)(a) of the Act being innate or immutable characteristics of members of the group that are also shared by Applicant 4. 

6. I further find that the chance of harm feared by Applicant 4 now and for the foreseeable future is real and not merely speculative.  I also find that the type of harm feared by Applicant 4 is serious harm for the purpose of s.5J(5) of the Act amounting to persecution in the relevant sense, given that it is systematic and discriminatory.  I also find that this harm relates to all parts of Libya now and for the reasonably foreseeable future.  I note that my findings in this respect are consistent with the reasoning of the Full Court of the Federal Court of Australia in MZYPW v MIC, in which the interrelated question of relocation and the particular vulnerabilities of minor children transplanted to an unfamiliar receiving country was specifically considered.[33]

   [33]MZYPW v MIAC (2012) 289 ALR 541 (FCFCA) at [19] per Flick and Jagot JJ; and, [38] per Yates J.

7. Pursuant to s.5J(3)(b) of the Act, I find that it would be impractical and unreasonable to expect Applicant 4 to modify her behaviour to reduce the real chance of significant physical harassment and significant physical ill-treatment due to her membership of the particular social group identified above.

8. Based on my findings and the available country information I am satisfied that Applicant 4 would not be able to secure effective state protection for the purposes of s.5LA of the Act.

   Summary

9. For the reasons given above the Tribunal is satisfied that Applicant 4 is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s.36(2)(a) of the Act.

10. I am satisfied that Applicants 1, 2, 3, 5 and 6 are all of the same family unit as Applicant 4 for the purposes of s.36(2)(b)(i) of the Act. As such, the fate of their applications depend on the outcome of Applicant 4’s application. It follows that the other applicants will be entitled to a protection visa, provided the criterion in s.36(2)(b)(ii) and the remaining criteria for the visa are met.

    DECISION

11. The Tribunal remits the matter for reconsideration with the following directions:

    (i)that Applicant 4 satisfies s.36(2)(a) of the Migration Act; and

    (ii)that the other applicants satisfy s.36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the applicant named at (i) above.

    Dr Colin Huntly
    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.

    …