1602870 (Refugee)

[2019] AATA 211

1602870 (Refugee) [2019] AATA 211 (24 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1602870

COUNTRY OF REFERENCE:                  China

MEMBER:Linda Symons

DATE:24 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2019 at 2:55pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Christianity – spouse was member of underground church – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), Schedule 2

CASES

MZAFZ v MIBP [2016] FCA 1081

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 on 16 February 2016 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 China, arrived in Australia [in] April 2011 as the holder of a [Visitor] visa. His visa expired on 24 July 2011 and he thereafter remained in Australia as an unlawful non-citizen. On 10 March 2015, he applied to the Department of Home Affairs (the Department) for a Protection visa and was granted an associated Bridging visa on 17 March 2015. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has any protection obligations.

3. On 5 March 2016, the applicant applied to the Tribunal for a review of that decision. On 22 November 2018, he was invited to appear before the Tribunal on 10 January 2019 to give evidence and present arguments relating to the issues arising in his case. On 9 January 2019, he sought and was granted a postponement of the hearing for medical reasons. The hearing was postponed to 23 January 2019.

4. The applicant appeared before the Tribunal on 23 January 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.  

10. 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

11. 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

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

    ·He was born on [date] at Shenyang in Liaoning Province in China. He got married [in] May 1991 and has one child of his marriage.

    ·His wife is a Christian. She attended gatherings with other Church members and distributed Christian pamphlets in public. [In] 2005, his wife went to a Church gathering and did not return at the expected time. He received a telephone call from her requesting that he bail her out at the Police Station.

    ·He went to the Police Station and was informed by a Policeman that his wife had attended an illegal underground Church and would be released if bail was paid. He withdrew [amount] yuan from the nearest ATM and secured her release. He became angry when he saw his wife crying and saw the “slapping mark” on her face. When he questioned the Policeman about this, he was told that his wife was lucky to have been released on bail and asked whether he wanted her to be detained.

    ·Thereafter, his wife did not dare to preach in public and she and other Church members met more secretly to read the Bible and communicate with each other. [In] 2007, the Police entered his home by force and arrested his wife. When he tried to prevent them from doing so, he was hit by a Police Officer. When he regained consciousness, his wife had been taken to the Police Station.

    ·Three or four hours later, he received a telephone call from the Police and was again requested to pay bail. He went to the Police Station and paid the bail. As she was being released, one of the Police Officers threatened his wife that if she continued to practice her religion she would be arrested and sentenced. His wife informed him that the Police Officer had beaten her and fingerprinted her by force on a declaration that confirmed she was a “heresy believer”.

    ·His wife contacted an agency and made arrangements for their son to study in Australia. She also applied for a Student Dependent visa and came to Australia with their son. He applied for and was granted a Visitor visa and came to Australia in April 2011.

    ·With the passage of time, they got used to life in Australia and his wife got to know some members of the local Church. In February 2012, his wife started attending [a church] at [Suburb 1]. Following a criminal case in Shandong Province on 18 May 2014, the Chinese government started to arrest Christians on a large scale.

    ·His wife’s Church friends in China contacted her and told her that they were living like fugitives and their relatives were being monitored by the Police. The advised her not to return to China. If he and his wife return to China they will be persecuted and monitored like his wife’s Church friends. He hopes the Australian government will grant him protection so that he could be safe from persecution by the Chinese Communist Party.

13. The applicant provided the Department with a copy of his Chinese passport.

14. The applicant attended an interview with the Department on 16 February 2016. During that interview, he stated that he is not a Christian and does not fear any threat to him personally if he returns to China. He stated that he applied for a Protection visa because his wife is distressed at the thought of returning to China. He stated that she applied for a Protection visa in 2014 and her application was refused by the Department and affirmed by the Tribunal on review. He stated that his son completed his studies in 2015, married an Australian citizen and has applied for a Partner visa. He stated that he applied for the Protection visa solely for the sake of his wife. The Department refused his application for a Protection visa.

15. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 16 February 2016 and his Chinese passport.

    Receiving country

16. The applicant claims to be a citizen of China and has provided a copy of his Chinese passport to the Tribunal. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of China. The Tribunal finds that China is the receiving country for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

17. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

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

19. During the hearing, the applicant gave evidence that he came to Australia to visit his son who was studying here. He stated that he came here on a Visitor visa. When asked why he did not return to China before his Visitor visa expired, he responded that he stayed here mainly because of his wife. He stated that she was worried after what happened in China and did not wish to return to China.

20. The applicant confirmed his earlier evidence to the Department that he is not a Christian and does not fear any threat to himself personally if he returns to China. He stated that he applied for a Protection visa because his wife is distressed at the thought of returning to China. He stated that she applied for a Protection visa in 2014 and her application was refused by the Department and affirmed by the Tribunal on review. He stated that he applied for the Protection visa solely for the sake of his wife. He stated that his wife is living here unlawfully. He stated that his son got married in Australia. He stated that his son does not have permanent residence in Australia and was unaware of his current immigration status.

21. The applicant gave evidence that he applied for the Protection visa because he did not wish to leave his wife in Australia and return to China. He stated that if he did that they would have to get divorced. The Tribunal pointed out that his wife does not have a visa that allows her to live in Australia and asked him why she has not returned to China. He responded that she is a Christian and is afraid to return to China after what happened. When asked what he thought would happen if he returned to China without her, he responded that it would be impossible for them not to get a divorce because of the differences between China and Australia and it would be difficult to get things done if she was living overseas. When asked what would happen if he returned to China with her, he responded that she dare not return to China, when she sees things about China she gets distressed and if she returns to China it would have an impact on her emotional stability.

22. The records of the Department indicate that the applicant’s wife applied for a Protection visa on 10 August 2012. This was almost 2 years after she arrived in Australia [in] December 2010. The Department assessed her application for a Protection visa and refused it on 19 November 2012. She then applied to the Tribunal for review of that decision and the Tribunal affirmed the decision made by the Department on 7 August 2013. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his wife’s claims for protection had been assessed twice and decisions made that she was not at risk of serious harm or significant harm if she returned to China. The Tribunal noted that this raised concerns in relation to the credibility of his claims about his wife.

23. The applicant responded that the reason why she delayed in applying for a Protection visa was because she did not have a lot of contact with people outside when she arrived in Australia and did not know Australian law. He stated that after a year she found out that she could attend Church in Australia. He stated that people from the Church informed her that she could apply for a Protection visa. The Tribunal does not accept this explanation. His son was studying in Australia and had access to teachers and other students from whom he could have obtained some information about where to obtain immigration advice, on behalf of his mother, if she had genuine fears about returning to China and was unable or unwilling to make those enquiries herself.

24. The records of the Department indicate that the applicant arrived in Australia [in] April 2011 on a Visitor visa there was valid for three months. His Visitor visa expired on 24 July 2011 and he thereafter remained in Australia as an unlawful non-citizen. His wife applied for a Protection visa on 10 August 2012 and did not include him as a member of her family unit in her visa application. Her application for a Protection visa was refused by the Department and by the Tribunal on review on 7 August 2013. He did not apply for a Protection visa until 10 March 2015.

25. The Tribunal put this information to the applicant, pursuant to s.424AA of the Act, and noted that his delay in applying for protection raised concerns in relation to his motive for making this visa application. The Tribunal noted that his immigration history raised concerns for the Tribunal and could lead it to the conclusion that he applied for the Protection visa to extend his stay in Australia and not because he is in need of protection. He responded that he tried to persuade his wife to return to China and failed. He stated that persuasion takes a long time and is a lengthy process. He stated that there is not a huge risk for her to return to China but she is distressed at the idea of returning to China. He stated that she is psychologically traumatised after what happened in China and is afraid to return. He stated that she is a timid person and did not return to China even when her father passed away last month.

26. The Tribunal does not accept this explanation particularly in view of other evidence given by the applicant. When given an opportunity by the Tribunal to present further evidence to support his claims for protection, his evidence consisted of questions as to why he had not been given work rights when he applied for a Protection visa. His evidence is that he has been working in [a specified] industry in Australia. He stated that because he did not have a visa with work rights employers were reluctant to hire him. He questioned why he had not been given a visa with work rights when he applied for a Protection visa. This tends to indicate that working in Australia was his priority and that he applied for a Protection visa with the expectation that he would be granted a Bridging visa with work rights.

27. The Tribunal asked the applicant why his wife did not include him as a member of her family unit in her application for a Protection visa. He responded that she was not familiar with the process. When the Tribunal pointed out that she had representation and could have sought immigration advice about the process from her representative, he responded that she has a religion and he does not. He stated that she applied for a Protection visa for herself as only she needed to apply for protection. When asked whether she had accompanied him to the Tribunal for the hearing, he answered no.

28. The applicant’s wife’s failure to include him in her application for a Protection visa as a member of her family unit and her failure to attend the Tribunal hearing to give evidence on his behalf raise concerns as to whether they are in fact still husband and wife. When the Tribunal raised this as an issue with him, he responded that she did not attend the Tribunal hearing because it is his case and it does not have a strong connection to her. He stated that his migration agent informed him of the hearing he did not inform him that his wife could also attend the hearing. He stated that his wife is a timid person and he did not want her to get involved in his case. When the Tribunal pointed out that his claims were all about her, he responded that he was not aware that he was allowed to bring his wife to the hearing.

29. The Tribunal does not accept this explanation. He has completed and returned to the Tribunal the Response to Hearing Invitation form. Part 3 of this form refers to witnesses who may be attending the hearing and gives applicants the option to request that the Tribunal take oral evidence from another person. It requests details of any proposed witness and gives ‘spouse’ and ‘partner’ as examples of witnesses who may be called to give evidence. He has ticked the ‘No’ box indicating that he did not wish to bring a witness. He has signed and dated this form 9 January 2019. In view of this evidence, the Tribunal does not accept that he did not know that he could bring his wife to the hearing to give evidence on his behalf.

    Section 438 Certificate

30. The Tribunal informed the applicant that his file from the Department contained a Certificate under s.438 of the Act and it related to the non-disclosure of information contained on two folios in his file. The Tribunal informed him that the Certificate was issued on the basis that it was contrary to public interest to disclose the information because it relates to internal working documents and business affairs of the Department. The Tribunal informed him that the information subject to the s.438 Certificate relates to application and identification test details and a checklist. The Tribunal informed him that the s.438 Certificate appears on its face to be invalid. The Tribunal invited him to make submissions on the validity of the s.438 Certificate and he responded that it is a valid Certificate.

31. In light of the Federal Court decision in MZAFZ v MIBP[1], the Tribunal finds that the s.438 Certificate is not valid as it does not specify a reason that could form the basis for a claim to public interest immunity.

    Findings

    [1] MZAFZ v MIBP [2016] FCA 1081

32. Having considered all the evidence, the Tribunal accepts that the applicant was born on [date] at Shenyang in Liaoning Province in China. The Tribunal accepts that he was married [in] May 1991 and has one child of his marriage. The Tribunal has doubts that he and his wife are still married but is unable to make this finding with confidence. Therefore, the Tribunal is prepared to give him the benefit of the doubt. The Tribunal accepts that his son travelled to Australia [in] December 2010 as the holder of a Student visa and that he was accompanied by his wife who was the holder of a Student Guardian visa.

1. The Tribunal accepts that the applicant travelled to Australia [in] April 2011 as the holder of a Visitor visa to visit his son. The Tribunal accepts that he did not leave Australia after his Visitor visa expired and remained here unlawfully between 25 July 2011 and 16 March 2015. The Tribunal accepts that he has been working unlawfully [in] Australia.

2. The Tribunal accepts that the applicant’s wife applied for a Protection visa on 10 August 2012, her visa application was refused by the Department on 19 November 2012 and that decision was affirmed by the Tribunal for review on 7 August 2013.The Tribunal accepts that she has remained in Australia as an unlawful non-citizen since then. The Tribunal accepts that she does not wish to return to China.

3. The Tribunal accepts that the applicant is not a Christian and does not fear any harm if he returns to China. The Tribunal does not accept that he will be forced to divorce his wife if he returns to China without her. The Tribunal is not satisfied, on the limited evidence before it, that he would be at risk of serious harm or significant harm because his wife is a Christian and is of adverse interest to the Chinese authorities.

4. On the evidence before it, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm if he returns to China now or in the reasonably foreseeable future.

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

5. Having considered all the evidence and claims and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to China 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 he 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?

6. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

7. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he returns to China now or in the reasonably foreseeable future.

8. Having considered all the evidence and claims and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future.    

9. Accordingly, 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 China, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

10. 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) 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 (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.

…