1513082 (Refugee)

[2017] AATA 1196

1513082 (Refugee) [2017] AATA 1196 (31 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1513082

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Christine Cody

DATE:31 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 31 July 2017 at 4:19pm

CATCHWORDS

Refugee – Protection visa – Taiwan – Did not attend DIBP interview – Did not attend Tribunal hearing – Debtor – Credibility issues

LEGISLATION

Migration Act 1958, ss 5AAA, 36, 65, 441A, 426A

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

BZADA v MICand RRT [2013] FCA 1062

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] September 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act). The relevant law is set out in Annexure A.

2. The applicant who claims to be a citizen of Taiwan, applied for the visa [in] February 2015. The delegate refused to grant the visa on the basis that the applicant failed to attend a scheduled interview [in] September 2015, and did not provide a reasonable explanation for her non-attendance.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Department

3. The Departmental file contains documents including protection visa application forms and a copy of some pages of her passport. According to the written documents, her relevant background and claims can be summarised as follows:

   ·     She was born in Taipei, Taiwan in [date] and is aged [age]. She speaks, reads and writes in Mandarin.

   ·     She has never been married or in a de facto relationship.

   · Her passport was granted on [2009].

   ·     Her last date of arrival in Australia was [December] 2014. She arrived on a [Temporary visa 1] which was valid until [[March] 2015.

   ·     She left Taiwan because she borrowed money from a gang and cannot afford to pay. Every week they increase the percentage and demanded her to pay interest and they beat her so she can’t work and she is told that the gang men will kill her because she owes so much money.

   ·     She has experienced “very strong harm”. She was beaten in the street and kidnapped by the gang who took her away and beat her. She couldn’t work for three days after the beatings. When she couldn’t repay the money because she has no work, the gang men came to find her and told her that the next time she will be killed. She is very afraid because she knows they did kill people before, but she cannot pay them because she cannot get enough money.

   ·     She heard from her relative that the gang men were looking for her many occasions and want to hurt her, and they have said very loudly to people in her street that they will harm her when she returns home. She was very afraid because her life will end when she returns.

   ·     The gang also wants to harm her so that their reputation will be powerful. Even if she paid the money, the gang need to show that they are powerful and so they will make her disappear, hurt her and then kill her.

   ·     The authorities can’t help her as the gang can easily find her and also bribe the police. The police will not assist her because she borrowed the money from the gang and she is not important so the gang can do what they want to.

4. In the Departmental file, there was a [Temporary visa 2] application lodged [September] 2012. The Tribunal also received the [Temporary visa 2] file containing her first [Temporary visa 2] visa application lodged [in] May 2011. These documents were not relevant (other than, as set out in other material provided by the applicant to the delegate/ Tribunal, they confirm that she came to Australia holding a [Temporary visa 2] and that she obtained a further such visa).  Further, the Tribunal notes there are no non-disclosure certificates on the Departmental files.

   The Tribunal

5. The applicant provided to the Tribunal an application for review, together with a copy of the delegate's decision record. She also provided a one page letter dated 21 September 2015 stating that she did not receive an email from the Department, which she was always looking out for, telling her that there was an interview date. Her situation in Taiwan is serious, she is in danger if she returns, from a gang who want to blackmail her to pay back the money she borrowed to them and they always increase the interest and ask her to serve them to pay it off and also to pay them back money. She is fearful that she will become a victim of rape and torture, they will take her, not allow her freedom and so she may then die. This is very serious for her personal safety. She wants the opportunity to attend a hearing.

6. The Tribunal notes that in her protection visa application form the applicant had agreed to the Department communicating with her by email.  Further, as set out in the delegate’s decision record provided to the Tribunal by the applicant, it was noted that the interview invitation had been forwarded to her by email, but that she had not attended the interview.

7. In her application for review form, she did not tick the boxes indicating whether she did or did not agree to the Tribunal communicating with her by email. Accordingly, the Tribunal forwarded a Hearing Invitation for 26 May 2017 to the applicant by way of post. The applicant was advised in the letter that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone; she was invited to give oral evidence and present arguments at a hearing on 26 May 2017. The Tribunal invited the applicant to provide any new or additional information or make any requests prior to the hearing; she did not do so. The applicant was advised that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision without further notice. No response was received to the Hearing Invitation.

8. Two SMS reminders of the hearing were sent to the telephone number that the applicant had provided to the Tribunal in the application for review form. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing (26 May 2017).  The hearing officer telephoned the applicant and there was no response. However, later that afternoon, she telephoned the Tribunal and asserted that she had not been aware of the hearing date as she had  changed her address and had not informed the Tribunal of this new address. She was informed that she must keep the Tribunal informed of any changes of address promptly, in order to ensure that she receives correspondence. She provided her new address as [address].  She confirmed it was definitely Unit [deleted], not Unit [number].

9. The Tribunal agreed to postpone the hearing date, and forwarded a further Hearing Invitation to the applicant by way of letter dated 2 June 2017, inviting her to attend a hearing on 29 June 2017.   On 6 June 2017 the applicant telephoned the Tribunal regarding the hearing date. She stated she had not received the Hearing Invitation and she then said that her address was [address].  While she was on the telephone, she agreed to the case officer emailing her the hearing invitation for the hearing on 29 July 2017, and she confirmed that she received it and was able to open and read the attachment. She agreed that all future correspondence be by email.

10. Two SMS reminders of the new hearing date were sent to the telephone number that the applicant had provided to the Tribunal in the application for review form, namely on 22 June 2017 and 28 June 2017. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing (29 June 2017). 

11. There has been no further contact from the applicant. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A of the Act firstly on 26 May 2017, but that she did not attend. The Tribunal finds that not only was she properly invited to a hearing but that she received a further two SMS reminders of that hearing, yet she still did not attend.

12. The Tribunal also finds that she provided to it, in her application for review form, her email address, and that in discussion with the case officer on 6 June 2017, she agreed to the second Hearing Invitation being emailed to her, and that all further correspondence be by email. The Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A of the Act on 29 June 2017, but that she did not attend.

13. In addition to being properly invited to the hearing on 29 June 2017, the Tribunal finds that she was actually aware of the Hearing Invitation through her conversation with the case officer on 6 June 2017, as well as by the further two SMS reminders of that hearing, yet she still did not attend. The Tribunal considers that the applicant has been provided with opportunities to provide any updates to the Tribunal and to attend a hearing, but that she has not done so.

14. Given that the applicant was properly invited to a hearing and that she did not attend, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    FINDINGS AND REASONS

    Country of reference

15. The applicant produced a certified photocopy of the identity and back page of her passport issued [in] 2009 by the Republic of China authorities (Taiwan).

16. The Department accepted that the applicant is a national of Taiwan (Republic of China), and assessed her claims against Taiwan. The applicant stated in her application for review form that her nationality is “Taiwan”. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Taiwan, and that the appropriate country of reference for the assessment of her refugee claims, and the receiving country for the purposes of her complementary protection claims, is Taiwan.

    Credibility

17. 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 the 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.

18. Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.

19. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70).

20. In the circumstances where an applicant does not attend a hearing to which she is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

21. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if she returns to Taiwan.

22. The applicant provided written claims to the Department.  The delegate refused her claims. She had been advised by the Tribunal that it had insufficient information before it to make a favourable decision on her behalf. Although she asserted in a letter that her situation was dangerous, she did not attend the hearing where she might have had the opportunity to provide necessary details of her claims. In these circumstances, a number of relevant questions about her claims remain unanswered, including as set out below.

23. The applicant has not provided many details of her claims. She has not explained why she needed to borrow money from a gang, the amount she borrowed, when she borrowed it, and why she agreed to borrow money at such seemingly exorbitant terms (weekly increases of the percentage). Further, she has not explained why, if she owed money to a gang, she did not use the funds she had available to travel to Australia to instead repay the debt she owed to the gang.  She has not explained how much it cost for her to obtain a [Temporary visa 2] and fly to Australia, and where she sourced the funds. She has also not provided details of the total amount of debt and interest payable to the gang.

24. The applicant has not explained why, if she was aware that this gang had killed people, she would borrow money from them in the first place. Further, given her claim that because they beat her, she could not work, she could not repay the money so they threatened to kill her, she has not explained how she managed to leave the country without them again kidnapping her and harming her for failing to repay the debt. She claimed that they had made loud threats in her street, so it appears that they were aware of her address.  

25. Further, the applicant has family members in Taiwan (she claimed that she had returned to Taiwan to visit her family); she has not explained how or if her family members have been targeted by the gang. The Tribunal considers that if the gang were prepared to target the applicant and subject her to serious or significant harm in order to obtain the return of their outstanding debt, then they may equally be prepared to target the applicant’s family to force her to repay the debt.

26. The applicant only provided vague details about a lack of state protection and she provided no sources of information for these claims; she has not explained whether she makes this claim because she has already tried to obtain state protection and failed, and if so when this occurred and what happened.

27. As noted above, the applicant travelled to Australia holding a [Temporary visa 2].  Her offshore [Temporary visa 2] was issued [in] June 2011, however she did not arrive in Australia until [September] 2011.  As she has not specified when the debt arose, it is possible that it arose before she first left Taiwan and if so, she has not explained her significant delay in leaving Taiwan despite the claimed dangers. Further, if it did arise in 2011, the Tribunal notes that she was issued with a second [Temporary visa 2] [in] September 2012, and [in] June 2014 she was issued with a [Temporary visa 1]. However, it was only [in] February 2015 that she lodged a protection visa application. She has not explained why she did not lodge a protection visa application at an earlier date. The Tribunal notes that she has not explained her delay of possibly about 3.5 years in lodging a protection visa application[1].

    [1]  The relevant dates are set out in the delegate’s decision record provided to the Tribunal by the applicant.

28. The applicant claimed that she returned to Taiwan in June 2014 to see her family and departed in December 2014 for Australia[2]. If the debt had already accrued in 2011, she has not explained why she returned to Taiwan. If however the debt arose when she was in Taiwan between June and December 2014, she has not explained why, after (presumably) working in Australia while holding two [Temporary visas 2], she had a need to borrow significant amount of debt upon return to Taiwan. Further, her [Temporary visa 1] had been granted [in] June 2014, however she has not explained why she did not arrive in Australia until [December] 2014[3].

    [2] See Protection Visa application.

    [3] See Protection Visa application

29. In the absence of further details and evidence, the Tribunal is not satisfied that the claims made by the applicant are credible.  The Tribunal is not prepared to accept that the applicant accumulated debts, that she was threatened or harmed by anyone, nor that she could not access state protection. The Tribunal does not accept any of the claims that flow from these claims. The Tribunal does not accept that the applicant left Taiwan to avoid harm. The Tribunal doesn’t accept that she had any genuine fear of harm when she left Taiwan to travel to Australia. It does not accept that there is any credible evidence to suggest that she faces a real chance of serious harm or real risk of significant harm if she returns to Taiwan. On the evidence before it, the Tribunal does not accept that she faces threats or mistreatment (including rape, torture, being forced into service or being killed) from gang members or anyone.

30. The Tribunal is not satisfied on the evidence before it that there is any reason for considering that the applicant faces a real chance of serious harm or a real risk of significant harm in Taiwan, nor that she faces a real chance or real risk of requiring access to state protection. 

31. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are credible, other than those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution for any of the reasons put forward by her.

32. The Tribunal does not accept that there is any credible evidence to support that the applicant faces a real chance of persecution in Taiwan. 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).

    Complementary protection criteria

33. 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). As discussed above there remain many questions unanswered in relation to the applicant's claims. Insufficient detail has been provided for the Tribunal to be satisfied that the claims are credible. The Tribunal is not satisfied on the evidence before it that she faces a real risk of significant harm in Taiwan for any reason, including threats or harm from gang members or anyone else. It is not satisfied that she faces a real risk of requiring access to state protection.

1. Accordingly, on the evidence presently before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, in this case Taiwan, there is a real risk that she will suffer significant harm for the purposes of 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).

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

   DECISION

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

   Christine Cody
   Member

   
   

ANNEXURE A - CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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 set out below.

5. 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 set out below.

   Mandatory considerations

6. 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.

   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.

   …