1612652 (Refugee)

[2017] AATA 3178

1612652 (Refugee) [2017] AATA 3178 (2 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612652

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Stuart Webb

DATE:2 June 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 02 June 2017 at 11:37am

CATCHWORDS
Refugee – Protection visa – Malaysia – Federal Circuit Court appeal – Religion – Christian – Wife originally Christian – Converted to Isam to marry – Now divorced – Conversion to Christianity to marry applicant – Threats of harm from Muslims – Fears persecution due to perception of converting Muslim – Credibility issues – Wife can apply to change religion at Sharia Court – Strong case as a former Christian from Iban tribe in Sarawak – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(H)1, 5(J), 5K-LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

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 1 August 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 Malaysia, applied for the visa on 18 March 2016. The hearing was a combined hearing with the applicant’s [wife] (1612650).The applicant provided a copy of the delegate’s decision to the Tribunal.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant made the following claims with his application. He had received death threats because he married a Muslim, which was not permitted as he is a Christian and she is a Christian. She ‘came out’ of the Islam religion. Both families told them to leave. The Muslim community knows his wife’s practice as a Christian and will kill her. The Islamic Department came to the home. They could not go anywhere in Malaysia to avoid the violence.

10. He stated that she married [in] November 2014, though the marriage was not registered with the authorities. He arrived in Australia on 29 May 2015. He applied for protection on 18 March 2016.

    Findings and reasons

    Country of nationality

11. The applicant claims to be a citizen of Malaysia and provided a copy of his passport to the Department. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s country of nationality for the purposes of the refugee and complementary protection assessments.

    Third country protection

12. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

    Credibility

13. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

14. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

15. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

16. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

17. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

18. The Tribunal notes that it is also legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

19. The applicant’s claims revolve around his relationship with his wife, who is presently a Muslim, though was born a Christian. The applicant claims that he will not be able to live with his wife. He claims also that he may be harmed because he will be seen as assisting a Muslim to convert to Christianity. He provided some country information at the hearing about a Christian pastor in Kuala Lumpur who had disappeared. The reports indicate that the pastor was involved in an organisation that was accused of attempting to convert Muslims when they hosted a party with Muslim attendees at a Church.

20. The Tribunal discussed the claims with the applicant and his wife. The Tribunal noted that the applicant’s wife was originally a Christian, and converted so that she could marry her first Muslim husband. That marriage is over and there are formal divorce orders. The applicant confirmed his wife’s background as a former Christian and of Iban ethnicity. The Tribunal noted that the location of the applicant and his wife in Malaysia had a greater proportion of Christians than Muslims. The Tribunal noted the country information that the applicant came from a state in Malaysia where the numbers of Christians followers outnumbered Muslims, the only state that the Tribunal was aware of that had this statistic.[1] The Tribunal noted that their respective ethnic groups, he came from small [tribe], while his wife was Iban, are predominantly Christian. The applicant confirmed that [his tribe] are almost all Christians, while the Tribunal noted that 75% of Iban are Christian, and only 1.5% of Iban are Muslim. [2] Ibans are the biggest ethnic group in Sarawak with a population of 745,400.[3]

    [1] Religion in Sarawak (2010) ^ "Taburan Penduduk dan Ciri-ciri asas demografi (Population Distribution and Basic demographic characteristics 2010)" (PDF). Department of Statistics, Malaysia. p. 13. Sarawak is the only state in Malaysia where Christians outnumber Muslims.

    [2] Religions of Ibans (Malaysia only). 2010 Population and Housing Census of Malaysia" (PDF) (in Malay and English). Department of Statistics, Malaysia. Found at .

    [3]

21. The Tribunal discussed country information about conversion in Malaysia. The Tribunal noted that there is a process available for people to seek to convert from the Muslim faith in Malaysia. Country information available and discussed at the hearing details that a Sharia Court can permit a person to convert from Islam to another religion. The country information states that this is not available for Malaysians who are Muslims by birth, but that it has been permitted when a person has converted to Islam from another religion, and then subsequently wants to convert again. This is in particular in circumstances where the person may have converted to Islam to marry a Muslim, and the relationship has ended and the person wishes to return to their original religion. Most examples of this are people who convert from Christianity to Islam, and wish to return to Christianity.

22. The Tribunal identified the following information from the most recent DFAT report on Malaysia.

    3.35 Based on the most recent available figures, only 168 of over 800 Muslims who attempted to convert between 2000 and 2010 were given permission to do so. In these cases, the sharia courts determined that all 168 applicants had not been Muslim to begin with, which thereby prevented any legal precedent supporting conversion from Islam. The inability to convert from Islam was proven by the landmark case of Lina Joy, who was a Muslim that converted to Christianity to marry a Christian in 1998. Her conversion was not recognised by the state so, by law, she was unable to marry a Christian. Her case culminated in a 2007 Federal Court decision which found that she was legally a Muslim and her religious status could not be removed from her national identity card, as ‘a person cannot, at one’s whim and fancies renounce or embrace a religion’. On the other hand, in December 2015, a 40 year-old man in Sarawak, who had been a Christian until his parents converted to Islam when he was eight years old, was granted a letter of release from Islam by the civil court on the basis that he was converted when he was a minor and had no choice in the matter. The civil court judge ruled that as he was not a Muslim from birth his case was not bound by the outcome of the ‘Lina Joy’ case and could not be heard in the sharia court.[4]  

    [4] DFAT Country Information Report Malaysia 19 July 2016

23. Other country information discussed the process for applying to convert from being a Muslim in Malaysia. An article from Malay Mail online discussed information as provided to it.

    In a recent interview with The Malay Mail Online, the Department of Syariah Judiciary Malaysia (JKSM) said that the Islamic courts are the only place according to current laws for Malaysians seeking to be no longer known as a Muslim.

    Explaining the process for a switch in religious status, JKSM identified two types of applications at the Shariah courts, namely to renounce Islam or for a declaration that one is no longer Muslim. The first involves practising Muslims regardless of ethnicity who want to renounce Islam and convert to other faiths; the JKSM said it could not find any such application in its official records, however.

    For the second type of application, JKSM further carves up applicants into three categories. The first subgroup are those mistakenly listed as Muslims because of naming conventions, typically involving residents of Sabah and Sarawak.

    Another group covers those who embraced Islam but now wish to revert to being non-Muslims, which includes applicants who had converted when marrying a Muslim but want out of the religion after the marriage fails.

    The last includes non-practising Muslims who want to be recognised as non-Muslims, with this third group cutting across ethnicity; this includes those who were born as Muslims and “by virtue of the documents are Muslims, but never practise the religion of Islam”, it said.

    According to Muslim non-governmental organisation Sisters in Islam, Islamic Affairs Minister Datuk Seri Jamil Khir had in 2011 said that the Shariah Courts had only approved a total of 135 out of 686 applications by Muslims seeking to change their religious status for the 2000-2010 period.

    According to JKSM, the procedure for anyone who wishes to renounce Islam or declare a change in religious status is the same, regardless of which category they fall under.

    In a typical application by way of summons, the state religious council and department — who are interested parties as keepers of the record of conversions — will have to answer the case in the Shariah court as defendants.

    Usually, the defendants will file a response stating the reasons why they object to the application, and apply to the Shariah Court to send the applicant for counselling sessions that typically last in most states for a maximum of six months.

    “The plaintiff will be sent to a committee to reconcile, to persuade him or her to remain in the religion,” JKSM said, noting that Negri Sembilan is the only state with laws on the procedure to renounce Islam. [5]

    [5] Path to leave Islam simple, but far from easy

24. The Tribunal has considered the issue of the applicant’s wife and her religion. The Tribunal considers that the applicant’s wife can apply to change her religion at the Sharia Court. The Tribunal considers that the applicant’s wife has a strong case to be permitted to revert to Christianity, that she, as a former Christian from the Iban tribe, living in Sarawak, now divorced from her Muslim husband, would be able to present a case that the Court would accept as a reasonable reason for her to revert to Christianity. The Tribunal notes the country information that a recent decision of the Sharia Court in the Sarawak region permitted a man who had been a Muslim for longer than the applicant to revert to Christianity. The Tribunal finds that the applicant’s wife will be permitted to revert to Christianity.

25. As the Tribunal has determined that the applicant’s wife will be able to revert to Christianity, the Tribunal considers that he and his wife will be able to reside in Malaysia as Christians.

26. The Tribunal has considered whether the applicant or his wife will be threatened or harmed because of the reversion of his wife to Christianity, and whether they will be harmed while the application to revert is proceeding. The Tribunal notes that the applicant and his wife will be a mixed religious partnership while the request to revert is being made. The applicant claimed he could be threatened because he might be seen as encouraging a Muslim to convert. The applicant provided country information about a Christian pastor who had gone missing who was associated with a group accused of proselytising Christianity. The applicant claimed his wife had received threats

27. The applicant noted that there was an example of a pastor who baptised a child who returned to the village. The applicant stated that it was not known where the child or pastor were now. The applicant confirmed that his village was a Christian village, the applicant stating that in his village they kept dogs and pigs and ate pork.

28. The Tribunal asked of the applicant had been to the police to report any of the threats that had been made. The applicant stated he had been to the police but nothing happened. The Tribunal noted that the applicant’s evidence contradicted what he had written in his application, where he stated that he did not feel safe even asking for help from the authorities. The applicant stated he had been to the police but that he had not written this into the application as he did not want to bad mouth his government.

29. The Tribunal does not accept this explanation. The Tribunal considers that the applicant would have mentioned this in his applicant had he approached the authorities, he in fact had stated the opposite, that he would not approach the authorities. The Tribunal considers that the applicant has contrived the claim that he approached the authorities at the hearing to support his claims generally, and does not accept that he did so. The Tribunal is concerned by the applicant’s willingness to provide false information in an attempt to bolster his claims, when contrary issues are raised.

30. The Tribunal noted that there were certainly some people who would not support the applicant’s wife and her reversion. The Tribunal accepts that there will be a certain amount of commentary about the applicant’s wife’s choice to revert, and that her choice may not be supported by some people in the Muslim community in Sarawak. But the Tribunal does not accept that these people who do not support the applicant’s wife’s choice will seek to harm the applicant, [an age] year old Christian [or] his wife, [an age] year old woman with her particular background. The Tribunal does not accept that the Muslim community will kill him or his wife.

1. The Tribunal noted that the applicant would not likely be seen as a person who was seeking to convert Muslims to Christianity. He was in a relationship with a woman who was seeking to revert to Christianity, but that did not mean that he was seeking to convert her or other Muslims. The Tribunal considers that the particular circumstances of the applicant and his wife are quite different to that of a pastor accused of proselytising Christianity to Muslims. No-one else but the applicant and his wife are involved. As detailed, there are provisions in Sharia law that permit, in certain circumstances, Muslims to convert to another religion. The applicant’s wife’s circumstances are a circumstance where conversion from Islam to another religion is permitted and has occurred. The Tribunal considers that the applicant’s wife will be successful in her application. The Tribunal does not consider that the applicant’s wife’s pursuit of this path will cause her to be threatened or harmed by any groups who oppose apostasy, or that the applicant will be seen as someone who has encouraged such apostasy.  The Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm for this reason.

2. The Tribunal does not accept that anyone will threaten the applicant or his wife because his wife has chosen to leave Islam. The Tribunal does not accept that the applicant or his wife will be threatened or harmed during the process of applying for permission to revert, including while cohabiting with her Christian husband. The Tribunal considers that the applicant’s wife’s personal circumstances as detailed mean that the applicant will not be a person of interest to any Muslim group. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm for this reason.

3. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Malaysia arising from his wife seeking to revert to Christianity, being permitted to revert to Christianity, or because he has been seen as encouraging her reversion to Christianity. The Tribunal finds that the applicant does not have a well-founded fear of persecution for these reasons.

4. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are no substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia to Malaysia.

5. 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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

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

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

   DECISION

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

   Stuart Webb
   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.

   …