1511296 (Refugee)

[2016] AATA 4381

1511296 (Refugee) [2016] AATA 4381 (4 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1511296

COUNTRY OF REFERENCE:                  India

MEMBER:Tigiilagi Eteuati

DATE:4 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 04 September 2016 at 4:01pm

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration [in] July 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of India applied for the visa [in] April 2015. The delegate refused to grant the visa on the basis that he was not satisfied that the applicant met the criteria for a protection visa after the applicant failed to attend the scheduled interview with the delegate.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. 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.

5. 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 themself 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).

6. 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.  

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

   CLAIMS AND EVIDENCE

9. In the statement the applicant provided with the his protection visa application the applicant stated:

   “I, [applicant’s name] of [Australian address], an India Citizen arrived in Australia as dependent with my wife. I was born in a farming family in Haryana. I met my ex-wife in a village ceremony and started relationship. We don't belong to same caste and some of her family members did not approve our love affairs. And the villagers did not approve our relationship. We have [number] children. They are with my in - laws. Her father was very supportive and helped us to, come to Australia but one of her brother threatened to kill both of us because his friends did not like me and one of his friend used to like my wife.

   We were living happily in Australia until she met an Indian guy in [city]. She left me after few months and accused me for break-up. And she took out an apprehended violence order (AVO) for two years (order no. [number]). Her family members threatened my mother in India. They called me from India and threatened to kill me. My children are not allowed to talk to me. We are a poor farming people. Her family is an influential family in the area and one of her family members is a gang member affiliated with political party.

   I know they are just waiting for me in India. They will kill me if I return to India in near future. When I spoke to them last time on the phone they made it very clear to me.

   The local police went to my house and asked my mother about me. They paid the police to harass my family members.

   My mother warned me the gravity of the situation and said that I should not go back to India in near future. In this kind of situation which is uncontrollable by the authorities and could lead to serious harm perhaps death.

   I am still going through emotional and psychological effects of all that I have been through last few months. I am traumatised over my helpless situation. Therefore I decided not to go back to India for my safety.

   I am deeply disturbed and worried about my life. I am seeking protection in Australia so that I do not have to go back to India.

   [Applicant’s name]”

10. At the hearing before the Tribunal, the applicant claimed to have met his wife in 2006 when she attended a religious festival in his village. The applicant claimed to have married his wife in mid-2007. Their first child was born in [year] in India and their second child was born in [year] in Australia. The applicant first arrived in Australia in March 2009 as a dependent of his wife who held a [temporary] visa. The applicant claimed that his first child was taken back to India to reside with his wife’s family shortly after the family arrived in Australia in 2009. Similarly, the applicant claimed that his [next] child was taken back to India to reside with his wife’s family shortly after he was born.

11. The applicant claimed the marriage between he and his wife was approved of by both his, and his wife’s families. However, the applicant claimed that his wife’s brother did not like the applicant and disapproved of the marriage. When asked why, the applicant claimed that his wife’s brother did not approve of him because he was of a different caste from his wife and was poor. The Tribunal notes that this appears to be inconsistent with the answer that the applicant gave in his original statement that his wife’s brother threatened to kill the applicant because his friends did not like the applicant and one of the friends used to like his wife. During the hearing the applicant claimed that he was a Jatt Sikh whereas his wife was from the Mazhabi Sikh caste, considered to be a much lower caste.

12. The applicant was asked whether there was ever any harm inflicted on him by his wife’s brother. The applicant indicated that, on three occasions before his wedding, his wife’s brother had threatened to kill him if the applicant married his sister. The applicant gave conflicting evidence about being harmed by his wife’s brother. At first the applicant claimed that his wife’s brother had slapped him a ‘couple of times’ before the couple were married. When asked for further detail, the applicant claimed that he and his wife’s brother had exchanged slaps. The applicant then claimed that there had been no exchange of slaps but rather that he had been slapped by his wife’s brother on two occasions. The applicant then went on to say that he’d been slapped on one occasion once and that on the second occasion he was pushed but not slapped. The applicant then said that on the first occasion he was slapped a number of times. He said on the second occasion he was grabbed by his wife’s brother before the two were separated. When the Tribunal indicated that it appeared that he had given a number of inconsistent accounts, the applicant said that the incident had happened a long time ago and he was quite tense. The applicant said that after the couple were married he had no further problems with anyone in his wife’s family, including her brother, until the couple separated in 2014.

13. The applicant claimed that he discovered that his wife was being unfaithful to him in mid to late 2013 when he noticed that she was spending a large amount of time on the telephone and on the internet communicating with another man. The applicant claimed that in January 2014 his wife left their home to live with the other man. The applicant claimed that in the same month his wife’s brother called him by telephone and claimed that the applicant had cause a lot of trouble for his sister, that he had thrown her out of the house and fabricated allegations against her that she had left him for another man. The applicant also claimed that his wife’s brother threatened him.

14. The applicant was quite vague when asked about the date of the second occasion he was contacted by his wife’s family following the separation. The applicant said that he was contacted the month after he was first contacted but did not say when. He said that his wife’s brother contacted him regularly and that sometimes he would take the calls and sometimes he would not pick up the telephone. After being asked a number of times to indicate when he was contacted the second time by his wife’s brother, he indicated that he was contacted in mid-February 2014.

15. The applicant indicated that when he was contacted the second time by his wife’s brother, the brother again expressed anger that the applicant was not caring for his sister, that the applicant was making false allegations that she was living with another man and that he had caused a lot of trouble. The applicant said that his wife’s brother threatened that if he returned to India “we will do something to you.”

16. The applicant claimed that he was subsequently contacted every month by his wife’s brother’s friends who said that the applicant caused trouble, told the applicant not to contact his wife and threatened to harm the applicant if he returned India.

17. The applicant indicated that his wife’s family had brought court proceedings against the applicant in India under Indian anti-dowry provisions. The applicant claimed that his wife’s family were falsely claiming that he was seeking dowry from his wife and her family. The applicant claimed that police had visited his mother in relation to the proceedings. The applicant claimed that since his wife left him, his wife’s family had prevented him from having any contact with his [number] children.

18. The Tribunal indicated that it did not seem to make sense that the applicant’s wife’s brother was angry that his sister had left the applicant when the applicant had told the Tribunal that his wife’s brother had always been against their marriage and had threatened to kill him if he married his wife. The Tribunal also indicated that it did not seem to make sense that the applicants wife’s brother was angry that the applicant was not caring for his sister and appeared to be suggesting that the applicant take her back, when the brother’s friends were telling the applicant not to contact his wife. The applicant claimed that his wife’s brother was only saying these things but did not mean them and indicated that the wife’s brother would have been happy that they had separated.

19. The Tribunal asked the applicant about the apprehended violence order (AVO) which he had referred to in his original statement. The applicant claimed that in June 2014 he had attended his wife’s new residence to seek reconciliation. The applicant claimed that an argument ensued, that his wife called the police and that the police arrived and removed him from as wife’s premises. The applicant said that he was required to attend court where he was issued with an order preventing him from attending his wife’s residence for a period of two years.

20. The Tribunal asked the applicant why he thought that as wife’s brother would harm him in circumstances where he had always wanted the couple to separate. The applicant claimed that his wife’s brother had said that the applicant wanted more dowry and that their family had spent a lot of money on sending the applicant to Australia. The applicant said that his wife’s family probably wanted to recoup the money that it had spent on the applicant.

21. The Tribunal asked the applicant whether the police in India would be able to protect him if he returned India. The applicant claimed that as wife’s family were politically connected and wealthy and that they could pay off the police.

22. The applicant was asked whether he could relocate within India to avoid harm. The applicant said that he had no money with which to relocate in India and that, in any event, his wife’s family would locate him.

23. The Tribunal indicated that according to the applicant’s evidence he feared returning to India since January 2014 but did not apply for a protection visa until April 2015. The Tribunal indicated that the applicant’s delay in applying for a protection visa may indicate that the applicant did not fear returning to India. The Tribunal asked the applicant to explain the delay in applying for a protection visa.

24. The applicant indicated that at first he thought that the situation may settle down. He indicated that in April or May 2014 his mother and members of his family approached his wife’s family to try and resolve the conflict between the couple. The applicant indicated that again in July or August 2014 his mother had tried to resolve the conflict between the couple by approaching the applicant’s wife’s family. The applicant indicated that on each occasion his wife’s family refused to speak with his mother. The applicant indicated it was only after his mother’s failed attempts to seek a resolution with his wife’s family that he decided to apply for a protection visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

26. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

27. The Tribunal finds the applicant is a national of India. He provided a copy of the identity information pages of his Indian passport to the Department. The applicant made no claim to be a national of any other country. The Tribunal accepts the applicant’s claims should be assessed against India for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). As the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious or significant harm, if he returned to India, it is unnecessary to determine whether the applicant has a right to enter and reside in Nepal under the India-Nepal Treaty of Peace and Friendship.

28. The Tribunal does not accept that the applicant was ever threatened by anyone in India because of his relationship with his wife or separation from his wife. His evidence before the Tribunal was often inconsistent and implausible. During the hearing the applicant was often evasive and unresponsive to direct questions. There were also major inconsistencies between what the applicant claimed in his application and before the Tribunal.

29. The Tribunal accepts that the applicant met his wife in 2006 and that they were married in 2007. The Tribunal is prepared to accept that the applicant is a Jatt Sikh while his wife is of the Mazhabi Sikh caste, considered to be a much lower caste. The Tribunal finds that the marriage was acceptable to both the applicant’s family and his wife’s family (apart from her brother). The Tribunal is willing to accept that the applicant’s wife’s brother was not happy with the marriage. The Tribunal is willing to accept that this was because his friend was fond of the applicant’s wife. The Tribunal does not accept that the wife’s brother’s objection was because the couple were from different castes as the applicant was from a relatively high caste and the wife and her brother were from one of the lowest Sikh castes. The Tribunal does not accept that the applicant was ever threatened or harmed by his wife’s brother. As pointed out above, the applicant’s evidence as to the harm inflicted by the applicant’s wife’s brother was inconsistent and the evidence about the threat was vague and unconvincing.

30. The Tribunal accepts that after the applicant and his wife were married in 2007 that neither were threatened or harmed on account of their marriage from the time they were married in 2007 to the time they departed India in 2009. The Tribunal finds that this supports the finding that the applicant will not be harmed by his wife’s brother, her family, people from his village or anyone else if he returns to India. The Tribunal finds that any ill will towards the couple by the applicant’s wife’s brother was not such as to cause any violence or threats towards the couple while they were in India until 2009. The Tribunal accepts that the couple separated in January 2014 and that the applicant’s wife moved out of the couple’s shared home. The Tribunal does not accept that the applicant’s wife’s brother or his friends ever called and threatened the applicant after the couple separated. The Tribunal does not accept as plausible that that the applicant’s wife’s brother, who had opposed the applicant’s marriage, called the applicant to threaten the applicant for separating from his sister. The Tribunal also considers it implausible that that the brother’s friends would call the applicant every month, since the separation in January 2014, to insist that the applicant not contact the applicant’s wife in circumstances where the applicant was essentially claiming that his wife’s brother was insisting that the applicant re-establish the relationship. The Tribunal does not accept the applicant’s explanation that the applicant’s brother was just saying these things but was actually happy that the couple had split.

1. The Tribunal does not accept that the applicant’s mother was ever threatened by the applicant’s wife’s family as claimed in the applicant’s original statement. The Tribunal accepts that after the separation, the applicant’s mother and other family members attempted to have the couple reconcile by twice approaching the applicant’s wife’s family to discuss the couple’s separation. However, the Tribunal finds that the fact that the applicant’s mother twice approached the wife’s family is inconsistent with the claim that the applicant’s mother was threatened by the wife’s family. The Tribunal notes that the applicant made no mention of his mother being threatened at the hearing. In addition, the Tribunal finds that the fact that the applicant’s wife’s family refused to discuss the separation with the Applicant’s mother suggests that the applicant’s wife’s family did not wish the couple to reconcile and were not aggrieved by the couple’s separation.

2. The Tribunal does not accept that the applicant’s wife’s family had brought proceedings against the applicant in India under the anti-dowry provisions. This claim was not raised in the original application and the applicant failed to provide any documents which would have been readily available if such charges had been brought against the applicant. Similarly, the Tribunal does not accept the claim that the applicant made in his original statement that the wife’s family had paid local police to harass the applicant’s mother.

3. The Tribunal accepts that in mid-2014 the applicant went to his wife’s new home, that an argument ensued and that the police removed the applicant from his wife’s premises. The Tribunal also accepts that the applicant was subsequently issued with an AVO preventing him from visiting his wife’s home.

4. The Tribunal does not accept that the applicant will be harmed if he returns to India because of his relationship with his wife, because of their separation of for any other reason. The Tribunal finds that the applicant has fabricated his claims about being threatened in order to improve his chances of being granted a protection visa. The Tribunal is also supported in this conclusion by the fact that the applicant did not apply for a protection visa until April 2015 despite claiming to fear his wife’s family from the time of their separation in January 2015. The Tribunal does not accept the applicant’s explanation that he was waiting on his mother’s efforts to speak to his wife’s family in order to assist reconciliation for the couple. On the applicant’s evidence, all efforts had failed by July or August 2014 and there is no explanation as to why the applicant waited a further 8 months before applying for a protection visa. In addition, the Tribunal gives some weight to the fact that the applicant did not attend the interview with the delegate to support the view that the applicant did not fear returning to India and that there is no real chance that the applicant will be harmed if he returns. While the Tribunal accepts that the applicant was admitted to hospital for [number] days in July 2015 for [a medical condition], the interview with the delegate was scheduled to be held a week after the applicant was released from hospital and his failure to attend may tend to support the view that the applicant did not consider that there was a real risk that he would be harmed if he returned to India.

5. After assessing all the evidence and being mindful of the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

7. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

   Tigiilagi Eteuati
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …