1604799 (Refugee)

[2016] AATA 4989

1604799 (Refugee) [2016] AATA 4989 (4 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604799

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:David McCulloch

DATE:4 August 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 04 August 2016 at 4:12pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – victim of money lenders – applicant left to account for business debt – fear of killing – physical violence – attacks on family – report to police – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, r 1.12, 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 on 4 April 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants who claim to be citizens of Malaysia applied for the visas on 7 July 2015.

   CRITERIA FOR A PROTECTION VISA

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

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

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

8. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 to include a relative of the family head (the first named applicant).  Among the further requirements are that the relative is usually resident in the family head’s household and is dependent on the family head.

9. The Tribunal is satisfied on the evidence that the first named applicant and the second named applicant are brother and sister and thus the second named applicant is a relative of the applicant.

10. In the first Tribunal hearing, the applicant indicated that, while she lives in [City 1], her brother lives in [City 2] and is working to support himself. That being the case, the Tribunal is not satisfied that the applicant and the second named applicant are usually resident in the same household or that the second named applicant is dependent on the applicant. For those reasons, the second named applicant does not meet the requirements as a member of the same family unit as the applicant. The second named applicant is therefore not in a position to be granted a Protection visa simply, unless he himself faces a real chance of serious or significant harm and meets additional criteria in his own right.

    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. The Tribunal has before it DFAT Country Report – Malaysia, 19 July 2016.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The first named applicant (‘the applicant’) appeared before the Tribunal on 29 June 2016 by video link from [City 1].  The second named applicant was not present. The Tribunal asked the applicant about the second named applicant and she indicated that he was living in [City 2] and that she had only recently received notice of hearing, which was why the second named applicant was not in attendance.

13. The Tribunal indicated that, because the second named applicant was making his own claims of harm, the Tribunal would convene a second hearing to enable exploration of those issues. A further hearing of the Tribunal was convened on 2 August 2016 by video link from [City 2] and [City 1]. At that hearing, whilst the applicant appeared, the second named applicant did not.  The applicant indicated that the second named applicant had returned to Malaysia on [a date in] July 2016.

14. The applicant was assisted in both hearings by an interpreter in the Malay language. The

15. The issue in this case is the credibility of the applicant and whether, on the accepted claims, the criteria for protection are fulfilled in relation to both applicants.  

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

    Background and claims

17. The applicant arrived in Australia on 19 May 2015 on a [temporary] visa. The second named applicant arrived on 19 October 2015 on a [temporary] visa. The application for a Protection visa was lodged on 7 July 2015.

18. The applicant was born on [date] and is [age] years old.  The second named applicant was born on [date] and is [age] years old.

19. The applicant makes the following claims in the Protection visa application forms. The applicant quit a low-paying job to start her own business. This was to be the business of buying [products]. She was invited to go into this business with a friend. They attempted to obtain a loan from a bank but did not succeed. Money was borrowed from moneylenders. A period of three months was provided to settle the relending of the money. The interest rate of the loan is high.

20. The applicant was cheated of the money by her friend. This person used the money without the applicant’s consent. He took the money and no longer comes into the office. The applicant has tried to find him. This is the money to repay the moneylenders.

21. The debt collectors arrived for the repayment of the loan. The applicant explained that she was cheated by her friend. They warned that the loan must be settled within seven days. The applicant attempted, without success, to borrow money from her parents and friends. When the debt collectors returned and the applicant could not pay, they beat her. They made death threats if the loan was not settled. They indicated that if the applicant tried to run away they would kill her and her family. She was forbidden to make a police report. The applicant would see these people every day at her home or office. They damaged the applicant’s car. The office was splashed with [paint] and they put [offensive objects] as a sign to demand the repayment. The moneylenders catch the applicant wherever she goes and hit her badly. The applicant was followed by an unknown person. The applicant feels like committing suicide as a result.

22. The interest rate is going up. The applicant cannot repay the loan. The applicant’s family helped her to sell some valuables to start a new life which is why she left her country.

23. The applicant cannot report the issue to the police otherwise the moneylenders will kill her. She remained silent even though her life and her family are in danger. The applicant tried to move to another place but they still found her. Every day she was hunted by them and observed constantly. The moneylenders are warning the applicant’s family that if she is found they will beat and kill her.

24. These cases regularly happen in Malaysia and authorities cannot protect the applicant. The applicant cannot relocate.

25. The second named applicant indicates that his claims are the same as his sister’s.

26. The applicant provided to the Tribunal a translated copy of a Royal Malaysian Police Report dated [in] September 2015 made by the applicant’s father. The statement of the applicant’s father refers to moneylenders lending money to the applicant. It indicates that moneylenders have come to look for the applicant to ask for repayment which was estimated to MYR [amount].  It indicates that the applicant has left Malaysia to obtain protection from the Australian government. It indicates that the applicant has told him that she received death threats and was hurt by the illegal moneylenders while she attempted to escape. It is due to fear from the moneylenders that she did not lodge a police report. The purpose of lodging the report is to inform the police in case something should happen.

27. In the second Tribunal hearing, the applicant indicated that the reference in this police report to MYR [amount] is an interpretation error and should have read [as ten times that figure].

28. The In the second Tribunal hearing, the applicant indicated that since the previous hearing the moneylenders had killed her business partner in a hit and run accident. They had also made frequent visits to the applicant’s parents’ home and business. Her parents had asked the second named applicant to return to Malaysia in order to assist the parents to move, to escape harm.

    Hearing, credibility, findings and assessment

29. The Tribunal is satisfied that the applicants are citizens of Malaysia, and accordingly their claims will be assessed against Malaysia.

30. The Tribunal has the following credibility concerns with the applicants’ claims.

31. Firstly, the applicant has not demonstrated a knowledge of the business affairs of the business that the money was loaned to support, or details of the loan, that is consistent with the applicant being guarantor of a loan of MYR [amount] (approx. AUD$[amount])  In the first hearing, the applicant indicated that the amount of the loan from the moneylenders, of which she was a guarantor, was MYR [amount]. The Tribunal asked the applicant how much of her own money she was putting into the venture, and she said MYR [amount].  When the applicant was asked how much her business partner was putting in, she said that she did not know. The Tribunal expressed surprise that she would not know the amount of the capital input by her business partner into the business. The applicant later indicated that her business partner was already running the [specified] business and the money was being borrowed to expand. The Tribunal notes that this is a somewhat different claim from the the written claims which suggests that the business was being started up, rather than being an ongoing business.

32. The Tribunal asked the applicant to provide an indication of the financials the business including income and expenditure, and the equity the applicant would have in the business. The applicant’s initial response to this question was that she left all of this to her business partner and was not involved in the detail of the business. The Tribunal expressed surprise to the applicant that she would take out a loan of such an amount without having a clear idea of the details of the business venture. When pressed, the applicant said that the business generated an income of MYR [amount] per month. The applicant was not able to indicate what the monthly expenses of the business were or what the profit was. The applicant said that the arrangement with her friend was that they would split the profits.

33. The Tribunal asked the applicant what the interest rate on the loan was. The applicant said that she did not know. The Tribunal expressed surprise that she would not know the interest rate on the loan.

34. The Tribunal considers that the applicant has displayed an extremely cursory understanding of the details of the loan, or details of the business that the applicant was investing in, for which the loan was to be utilised.  The Tribunal considers that the lack of detail is undermining of the credibility of the applicant’s claims of organising and acting as guarantor for the loan, or buying or investing in the business.

35. Secondly, the evidence given by the applicant as to the repayment amount of the loan does not make sense in the context of the applicant’s evidence as to the monthly income of the business. The applicant gave evidence in the hearing that the weekly repayment on the loan was MYR [amount]. Given that the applicant had indicated that the monthly income of the business was MYR [amount], which takes no account of expenses, there would be no prospect that the business could repay an amount of approximately [twice that figure] per month.  That fact undermines the credibility of the applicant’s claims concerning the loan.

36. Thirdly, the applicant has not been consistent in terms of an inability to provide to the Tribunal with documents relating to the loan.  When the Tribunal initially asked the applicant in the first hearing whether she had documents in relation to the loan, she said that these were in the possession of her business partner, and not available to her. Later in the hearing, the applicant gave contradictory evidence that she did have relevant documents but that they were back in Malaysia, but that she did not know where. When the Tribunal pointed out to the applicant the inconsistency in relation to this evidence, she said that at one point she did not have documents but later spoke to her business partner and obtained them. The Tribunal considers that the evidence on this issue has been directly inconsistent, and does not accept the applicant’s explanation given her clear initial statement that she did not have loan documents or access to them.

37. The Tribunal finds this inconsistency as undermining of the applicant’s credibility in relation to the loan, and generally.

38. Fourthly, the applicant’s evidence as to the identity of the moneylender(s) she was dealing with was unsatisfactory. When the Tribunal first asked the applicant the name of the moneylender she was dealing with, she said that she did not know. When the Tribunal expressed surprise she would not know the name of the person with whom she had had the various dealings, she then said that the person’s name was [Mr A].  The Tribunal finds the applicant’s inability initially to provide the name of the moneylender as troubling in relation to her credibility. This is reinforced by the applicant’s later evidence in the hearing of numerous conversations by telephone with both [Mr A] and his staff, together face-to-face meetings which would indicating frequent contact, making it unlikely that the applicant would be unable to initially recall the name of the person that she had been dealing with.

39. Fifthly, the applicant, in the first Tribunal hearing, failed to mention key claims of harm from the moneylenders as set out in the applicant’s written statement. In the first hearing, the Tribunal explored at some length, and with multiple questions, details of the harm and difficulties faced from the moneylenders. The applicant referred to multiple visits and threats, and her car being stopped. However, she made no mention of being physically harmed or of property being damaged. On further questioning, the applicant referred to an incident at the airport when she was leaving to come to Australia when the moneylenders had grabbed her arm, and had taken one of her bags. No other instances of harm were provided in response to the detailed questioning by the Tribunal.

40. The Tribunal noted to the applicant that she made no reference in the hearing to the evidence in her written claims of being beaten and hit on more than one occasion. It noted that there was no reference to the applicant’s car being damaged, the office being sprayed with [paint] or [offensive objects] being left as a sign to demand repayment. In response to the Tribunal’s concern in relation to the applicant’s failure to mention these issues in the hearing, the applicant said that she had referred to her arm being grabbed at the airport. The applicant then mentioned that [paint] was sprayed, but that she did not see this herself, but was told by a friend.

41. The Tribunal finds the applicant’s failure to mention in the Tribunal hearing key instances of harm contained in her written statement as undermining of the truth of the applicant’s claims to have suffered difficulties from money lenders. The applicant being physically assaulted on multiple occasions, her car being damaged and [an offensive object] being left would all be very impactful events. The Tribunal considers that, had those events occurred, they would have been mentioned by the applicant in the Tribunal hearing. The Tribunal does not consider the applicant’s claim in the hearing that her arm was grabbed at the airport is the same as the applicant’s written claims that she was physically assaulted on multiple occasions.

42. Sixthly, the applicant’s claim in the first Tribunal hearing that her father had the window of his car damaged by the moneylenders seems at odds with the failure by her father to report this event to the police in the police report that made been made by him [in] September 2015.

43. The Tribunal explored with the applicant in the first hearing difficulties that her parents and brothers had faced relating to her loan issues. The applicant said that there had been visits and threats. In relation to specific harm or damage, the applicant referred to her father’s car being damaged in an incident with the moneylenders in which the moneylenders had knives. The applicant said that her brother was present at this event.  The applicant indicated that this incident happened approximately one month after she came to Australia, and before the police report made by her father in September 2015.

1. The Tribunal noted that it seemed odd that her father had not specifically referred to this event in the police report. The Tribunal considers that, had there been a specific event where the applicant’s father’s car was damaged and the perpetrators were armed with knives, this would be an event that would be specifically mentioned in the police report, in addition to more general claims as to difficulties faced from moneylenders. The fact that it was not mentioned in the report is undermining as to the truth of the claimed event.

2. Seventhly, the Tribunal does not consider it plausible that the second named applicant would have return to Malaysia if there was a real chance of serious or significant harm to him, along with the family, from the moneylenders. The applicant explained, in the second hearing, that her parents needed the second named applicant’s help them move as there was no one else to assist. The Tribunal does not consider this as plausible. The Tribunal considers, that if the applicant’s claims were true, her parents would want the second named applicant to remain in Australia where he would be safe and to seek to continue to prosecute an application for a Protection visa.

3. The cumulative impact of the seven deficiencies in the evidence are significantly damaging to the credibility of the applicants’ claims.  They cause the Tribunal to not be satisfied as to any substantive aspect of the applicants’ claims. 

4. The Tribunal is not satisfied that the applicant borrowed money as guarantor from illegal money lenders which has remained unpaid, for the purpose of a [specified product] business. The Tribunal is not satisfied that the applicant’s business partner absconded leaving her with the debt and an inability to repay it. The Tribunal is not satisfied that the applicant has been threatened by, or suffered harm from, the illegal moneylenders, including by way of physical harm, vandalism or [an offensive object] being left as a threat, or being hunted by them. The Tribunal is not satisfied that the applicant was manhandled at the airport by the moneylenders when she was leaving for Australia. The Tribunal is not satisfied that the applicant changed locations to avoid harm from the illegal moneylenders. The Tribunal is not satisfied that the second named applicant, or the rest of the family, have suffered threats or harm from the illegal moneylenders. The Tribunal is not satisfied that the applicant’s business partner has been recently killed by the moneylenders in a hit and run accident.

5. Given those findings, the Tribunal is not satisfied that the applicants face a real chance of serious or significant harm on return to Malaysia for any of the reasons claimed, or for any other reasons.

6. The Tribunal notes that the evidence of the applicant suggests that the second named applicant has returned to Malaysia. If this is correct, it would mean that the applicant is not entitled to a Protection visa because he is not in Australia as required by s.36(2) of the Act. However, as the applicant’s evidence that second named applicant has left the country has not been put to the second named applicant, the Tribunal makes no firm finding that he has left the country. Regardless of where the second named applicant may be, for the reasons already given, the Tribunal does not consider that he faces a real chance of serious or significant harm on return to Malaysia for any of the reasons claimed, or for any other reasons, and thus does not meet necessary criteria for the grant of a Protection visa.

7. In relation to the refugee criterion, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a refugee criterion reason, for any of the reasons claimed, or for any other reasons.

8. In relation to the complementary protection criterion, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.

9. For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

10. The Tribunal affirms the decision not to grant the applicants protection visas.

    David McCulloch
    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.

    …