1516955 (Refugee)

[2017] AATA 2150

1516955 (Refugee) [2017] AATA 2150 (15 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516955

COUNTRY OF REFERENCE:                  Thailand

MEMBER:Linda Symons

DATE:15 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 15 August 2017 at 3:28pm

CATCHWORDS

Refugee – Protection visa – Thailand – Threats from relative – Indecent assault - Credibility – Vague and unconvincing – Inconsistent and implausible – Immigration history – Delay in protection visa application

LEGISLATION

Migration Act 1958, ss 5(1), 5H(1)(a), 5H(1)(b), 5J(1)-(6), 5K-LA, 36(2)(a), (aa), (b), or (c), 36(2A) and (2B), 65, 499

Migration Regulations 1994, Schedule 2

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] November 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 Thailand, first arrived in Australia [in] October 2003 as a holder of a [Visa 1] that was valid until [date] February 2004. She departed Australia [in] December 2003 and returned [in] January 2004. [In] February 2004, she was granted another [Visa 1] that was valid until [date] January 2005. She departed Australia [in] December 2004 and returned [in] January 2005. She was granted a [Visa 2] [in] January 2005 that was valid until [date] July 2005. [In] July 2005, she was granted another [Visa 2] was valid until [date] November 2005. [In] November 2005, she was granted a Bridging visa in association with her application for a [Visa 3]. [In] December 2005, she was granted a [Visa 3] that was valid until [date] February 2006.

3. The applicant departed Australia [in] December 2005 and returned [in] December 2005. She applied for a further [Visa 3] and was granted an associated Bridging visa [in] February 2006. She departed Australia [in] May 2006 and returned [in] June 2006. She was granted a further [Visa 3] [in] June 2006 that was valid until [date] September 2006. [In] September 2006, she was granted a third [Visa 3] that was valid until [date] December 2006. She departed Australia [in] December 2006 and returned [in] January 2007. She was granted a [Visa 4] [in] January 2007 that was valid until [date] January 2007. [In] January 2007, she was granted another [Visa 4] that was valid until [date] March 2009. She departed Australia [in] November 2007 and returned [in] December 2007.

4. The applicant applied for a further [Visa 4] and was granted an associated Bridging visa [in] March 2009. [In] April 2009, she was granted a [Visa 4] that was valid until [date] March 2010. She applied for another [Visa 4] and was granted an associated Bridging visa [in] February 2010. [In] April 2010, she was granted a [Visa 4] that was valid until [date] June 2011. She applied for another [Visa 4] and was granted an associated Bridging visa [in] June 2011. [In] June 2011, she was granted a [Visa 4] that was valid until [date] March 2013. [In] March 2013, she applied for a [Visa 5] and was granted an associated Bridging visa on that date. [In] May 2014, her application for a [Visa 5] was refused by the Department of Immigration and Border Protection (the Department). She applied to the Tribunal for a review of that decision. On 13 July 2015, the Tribunal affirmed the decision made by the Department.

5. The applicant applied to the Department for a Protection visa [in] July 2015. The delegate refused to grant the visa on the basis that that she is not a person in respect of whom Australia has protection obligations. [In] December 2015, she applied to the Tribunal for a review of that decision.

6. The applicant appeared before the Tribunal on 15 August 2017 to give evidence and present arguments. She was assisted by an interpreter in the Thai and English languages. 

7. The issues that arise on review are whether the applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.

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 extracted in the attachment to this decision.

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 extracted in the attachment to this decision.

   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.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

7. The applicant’s claims in her application for a Protection visa are summarised as follows:

   ·Her family lived in a small province in northern Thailand. Her parents had a small business. In the past, her family had financial problems and were assisted by her [relative]. She thought he was a good person but she was wrong.

   ·Her [relative] [indecently assaulted] her several times. The first occasion was in 2005. She had to do some business with her [relative] and on the way home he took her to a motel. He threatened her with a gun and [indecently assaulted] her. On the next day, she reported the incident to the Police but nothing happened. She was fearful and did not tell anyone what happened. She decided to escape from the shame by coming to Australia and studying here. She obtained a visa with the assistance of a friend. She decided that she would not return to Thailand and would do whatever she could to stay in Australia.

   ·In 2007, she received bad news about her mother who had been diagnosed with [medical condition]. She had to return to Thailand although she did not wish to do so. She visited her mother frequently at the hospital. On one occasion, her [relative] went to her house at Bangkok and [indecently assaulted] her again. She changed her airline ticket and returned to Australia immediately.

   ·Her mental health has deteriorated. She feels depressed, hopeless, frightened and desperate. She fears that she will be killed if she returns to Thailand. Her [relative] threatened her many times that if her parents or his wife find out what happened, he would kill her. He is a powerful and well-known person. He has strong political support.

   ·The Police will not protect her because of corruption in Thailand. She is unable to move to another part of Thailand because she does not have any relatives elsewhere and it is too dangerous to travel to other areas of Thailand by herself. Her [relative] has powerful connections across the country. Her life would be in danger if she had to live by herself.

8. The applicant has filed with the Department and the Tribunal a copy of her Thai passport.

9. The applicant attended an interview with the Department [in] November 2015. During that interview, she reiterated and expanded on her written claims.

10. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2015.

    Nationality

11. The Tribunal finds that the applicant is a citizen of Thailand based on her Thai passport and her evidence and will assess her claims on this basis. The Tribunal finds that the applicant is outside her country of nationality. There is no evidence before the Tribunal to suggest that she has a right to enter and reside in any country other than her country of nationality.

    Does Australia have protection obligations to the applicant under the refugee criterion?

12. The applicant gave evidence to the Tribunal that her migration agent prepared her application for a Protection visa based on her instructions which were true and correct. She stated that she is satisfied that her visa application is accurate and complete. She stated that there have been no changes in her circumstances since her visa application was filed.

13. During the hearing, the Tribunal discussed with the applicant her background, her family, her education, her employment, where she lived in Thailand, her reasons for leaving Thailand and why she fears returning to Thailand. The Tribunal found aspects of her evidence to be vague, implausible and unconvincing. The Tribunal is of the view that she is not a credible or reliable witness for the following reasons.

14. First, in her visa application, the applicant claimed that her [relative] [indecently assaulted] her several times. She claimed that the first occasion was in 2005. She claimed that she had to do some business with her [relative] and on the way home he took her to a motel, threatened her with a gun and [indecently assaulted] her. During the hearing, she gave evidence that this incident occurred at the end of 2005. When asked what business she had to do with her [relative], she responded that they had to do something in the main part of the Province. When asked for further details, she repeated that they had to do something in the main part of the Province. When asked why she went into a motel with her [relative], she responded that she did not get out of the car. She then stated that her [relative] took her to the hotel on the way home. She made no mention of him using a gun to threaten her. She stated that he [indecently assaulted] her and she fought and yelled. She stated that he then took her home and dropped her off.

15. The Tribunal found her evidence in relation to this incident to be vague and unconvincing. She was unable to provide any details. The Tribunal finds it implausible that the staff at the motel did not intervene if she was yelling and fighting off her [relative]. The Tribunal is not satisfied that she was speaking about a personal experience.

16. Second, in her visa application, the applicant claimed that she was fearful and did not tell anyone what happened. She claimed that her [relative] threatened her many times that if her parents or his wife found out what happened he would kill her. However, she also claimed that she reported the incident to the Police but nothing happened. During the hearing, she gave evidence that she reported the incident to the Police the following day but was too afraid to tell them her [relative]’s name. When asked why she went to the Police, she responded that she wanted to report the incident to the Police but was afraid to tell them his name. When asked what the purpose was in reporting the incident to the Police if she did not tell them her [relative]’s name, she responded that she thought that if she told them they could not do anything about it. When asked again why she went to the Police, she responded that she did not know. She stated that she was frightened and too afraid to tell anyone in her family.

17. The Tribunal finds this evidence to be inconsistent and implausible. Her evidence that she reported this incident to the Police is inconsistent with her claims that she did not tell anyone what happened. It is also implausible that she would report the incident to the Police and then not tell them her [relative]’s name as this serves no apparent purpose. When the Tribunal raised this as an issue with her, she made no response.

18. Third, in her visa application, the applicant claimed that she decided to escape from the shame by coming to Australia and studying here. She claimed that she obtained a visa with the assistance of a friend. She claimed that she decided that she would not return to Thailand and would do whatever she could to stay in Australia. She claimed that in 2007 she received bad news about her mother who had been diagnosed with [medical condition] and had to return to Thailand although she did not wish to do so. She claimed that she fears that she will be killed if she returns to Thailand. During the hearing, she gave evidence that she applied for a Protection visa because she fears that her life would not be safe if she returns to Thailand. When asked what she thought would happen if she returned to Thailand, she stated that her life would be at risk from her [relative].

19. The records of the Department indicate that the applicant has returned to Thailand on three occasions since she claimed to have been [indecently assaulted] in 2005. The first occasion was from [date] May 2006 to [date] June 2006. The second occasion was from [date] December 2006 to [date] January 2007. The third occasion was from [date] November 2007 to [date] December 2007. Her evidence was that on each occasion she returned to Thailand she stayed with her parents at their home. She stated that her [relative] lived close to her parents’ home and was a [number] minute walk from their home. She stated that he frequently visited her parents and was there about once a week. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that each time she returned to Thailand she put herself in a position where she would have contact with her [relative]. The Tribunal noted that this behaviour was not consistent with someone who was [indecently assaulted] and feared being [indecently assaulted]or killed if they returned to Thailand. Her conduct was not consistent with her claims and raises concerns about the credibility of her claims. She declined to respond.

20. Fourth, the records of the Department indicate that the applicant applied for a [Visa 5] [in] March 2013. That application was refused by the Department [in] May 2014. She then applied to the Tribunal for a review of that decision. The Tribunal affirmed the decision of the Department on 13 July 2015. She then applied for a Protection visa [in] July 2015, some 10 years after she claims she was first [indecently assaulted] by her [relative]. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that her immigration history may lead it to the conclusion that she was using an application for a Protection visa to remain in Australia and not because she was in need of protection. The Tribunal also noted that this raised concerns about the credibility of her claims.

21. The applicant responded that she did not apply for a Protection visa earlier because she was not aware of it. She stated that she was embarrassed to tell others what had happened and did not want to talk about it. She then stated that, if she knew about Protection visas, she would have applied for one soon after she came to Australia. She stated that she tried every possible way in which to stay in Australia. She stated that the only thing she could do was to keep studying and obtain [certain] visas. The Tribunal does not accept this explanation. The visas that she applied for, other than the [Visa 5], were temporary visas which required her to return to Thailand prior to the expiry of those visas. The Tribunal is of the view that, if she feared she would be [indecently assaulted] or killed if she returned to Thailand, she would have obtained immigration advice soon after her arrival in Australia and applied for a Protection visa.

22. Fifth, the records of the Department indicate that the applicant applied for a number of [certain] visas in Australia. She was represented by a migration agent in relation to her [certain] visa applications lodged [in] December 2006, [in] March 2009 and [in] June 2011. This is not consistent with her evidence to the Tribunal that the first time she sought immigration advice in Australia was in 2014. The Tribunal put this information to her, pursuant to s.424AA of the Act, and noted that her she had the benefit of obtaining advice from a migration agent since 2006 and would expect that she would have spoken to her migration agent about her concerns about returning to live in Thailand and obtained some advice on her options for staying in Australia permanently. The Tribunal noted that her failure to apply for a Protection visa earlier raises concerns about the credibility of her claims.

23. The applicant responded that, at the time, she did not know about Protection visas and was thinking of ways to continue living in Australia. She stated that she only consulted the migration agents in relation to obtaining [certain] visas. She stated that she was not advised about Protection visas. When the Tribunal pointed out that that may be because she did not seek any advice about how she could obtain a permanent visa, she agreed. She stated that at that time she thought that she had to study in order to get permanent residence. This response does not address the issue raised with her or alleviate the Tribunal’s concerns

24. Sixth, the applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2015. It indicates that during her interview with the Department [in] November 2015 she made new claims that her [relative] knows a number of Police Officers and gangsters and is also a drug dealer. During the hearing, when asked about her [relative]’s work her responses were vague. She stated that he is not a leader of the village but is someone who looks after the district. When asked exactly what he did, she responded that he looks after the villages. She stated that he works in the local district government. When asked whether he was involved in any other activities besides his work, she responded no. These inconsistencies in her evidence raise further concerns about the credibility of her claims.

1. The Tribunal has had regard to the Tribunal's Guidelines on the Assessment of Credibility when assessing the applicant's credibility. The Tribunal has also had regard to the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration.

   Findings

2. Having considered all the applicant's claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that she fabricated her material claims for the purpose of obtaining a Protection visa.

3. The Tribunal accepts that the applicant was born on [date] at [town] in Thailand. The Tribunal accepts that her parents, [and siblings] reside in Thailand. The Tribunal accepts that she attended University in Thailand and graduated from [a] University in March [year]. The Tribunal accepts that she came to Australia for the purpose of studying. The Tribunal accepts that she completed a [course] at [a] University in [year], Certificate courses in [various fields] and a number of other courses. The Tribunal accepts that she hoped that her studies would lead to a pathway to permanent residence.

4. The Tribunal accepts that the applicant has worked as a [occupations] in Australia. The Tribunal accepts that she does not want to return to Thailand and would like to live in Australia permanently. The Tribunal accepts that she tried to find ways to remain in Australia.

5. The Tribunal does not accept that the applicant was [indecently assaulted] by her [relative]. It follows that the Tribunal does not accept any of her claims that flow from that. The Tribunal does not accept that she fears returning to Thailand for the reasons claimed. The Tribunal does not accept that she is at risk of serious harm or significant harm if she returns to Thailand.

6. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Thailand now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

   Does Australia have protection obligations to the applicant under the complementary       protection criterion?

7. The Tribunal has considered the applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that she will suffer significant harm for the reasons claimed if she returns to Thailand now or in the reasonably foreseeable future.

8. Having considered all of the applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Thailand now or in the reasonably foreseeable future.

9. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

10. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

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

    DECISION

12. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Linda Symons

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.

…