1704029 (Refugee)

[2020] AATA 4271

1704029 (Refugee) [2020] AATA 4271 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1704029

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:10 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 September 2020 at  3:00 pm

CATCHWORDS

REFUGEE – protection visa – China – religion – I-Kuan-Tao – mistaken identity in traffic accident – pressure to falsely confess – threats to family – exit procedures – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425
Migration Regulations 1994, Schedule 2

CASES

Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220
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 and Border Protection on 10 February 2017 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, applied for the visa on 5 July 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant would suffer serious or significant harm on her return to China.

3. The applicant appealed that decision to this Tribunal, annexing a copy of the delegate’s decision to her application for review.

4. By letter dated 28 August 2020, the applicant was notified that the Tribunal was in the process of scheduling a hearing to take place remotely via Microsoft Teams and seeking the applicant’s advice regarding the technological capacity to participate in a hearing, and having access to a quiet and suitable place from which to participate. The applicant was requested to contact the Tribunal, indicating whether or not this mode of hearing would be suitable for her needs.

5. The applicant responded to the Tribunal’s correspondence stating that she is unable to attend a video hearing or phone hearing. She said that she believed that she had provided the Tribunal with enough information and supporting documents with her initial application and requested that the Tribunal make its decision based on strong information. She also stated that she cannot return to China and hoped the Tribunal could give good consideration and make its decision based on her previous supporting documents.

6. The Tribunal wrote to the applicant on 2 September 2020 asking her to confirm that she understood that when making a decision on the papers the Tribunal may either affirm the decision to refuse the visa or remit the matter for reconsideration. The applicant responded on 8 September 2020 stating:

   I confirm to AAT that you can make your final decision-based on my previous paper documents and I will not attend the hearing by phone.

7. I am satisfied that the applicant has consented to the Tribunal deciding the review without her appearing before it, and I have proceeded to make a decision on the information before the Tribunal and not to offer the applicant a hearing.

8. In accordance with s. 425(2)(b) I proceed to decide this application on the material before the Tribunal.

   CRITERIA FOR A PROTECTION VISA

9. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. In her PV application the applicant stated that she is a Chinese national. Her parents, husband and [age] year old son reside in China. The applicant lived in Dongtai.

11. [In] December 2015 the applicant’s husband went to the markets and it was claimed, by a neighbour, her husband had struck someone down with his car. The applicant claimed she and her husband did not own a car. The applicant, who was at home, went to the main street of the village to see a [vehicle type] parked on the street and a middle-aged woman lying on the ground, covered by a white cloth who ‘seemed to have died a long time’. The applicant’s husband was to the side, handcuffed. He shouted that he had not hit the woman and the vehicle did not belong to him. The applicant went to her husband’s side and asked him what was happening. Her husband told her that he had seen the driver of the vehicle standing at the side of the road, he asked her husband to fetch his cell phone from his car so that he could call for assistance. Her husband went to the car, found the phone but the driver had disappeared. Police then arrived on the scene and arrested the applicant’s husband. 

12. The applicant asked her husband why he did not explain what had taken place to the police. He said he had already done so but the police did not listen. At that moment, the driver arrived on the scene in another vehicle, pointed to the applicant’s husband and said that her husband had stolen his car. The police took the applicant and her husband to the police station where the police said there was no need to investigate as the car, a [same vehicle type], had been stolen the day prior to the accident. The applicant said that her husband had been home all day on [that day in] December 2015 and so could not have stolen the vehicle.

13. However the driver who was ‘powerful’ had bribed police. The applicant’s husband was under criminal detention awaiting trial. [On a date in] December 2016 police called the applicant to the station. They advised the applicant her husband should plead guilty, and he would receive a reduced sentence. The applicant told police she wanted to testify that her husband had not left home on [that day in] December 2016 but police informed her that as she was his wife she could not be a witness.

14. The applicant petitioned official in [another region] as she feared officials in Dongtai had been bribed. Officials at the [other region] petition office told the applicant they would urge the Dongtai Public Security Bureau (PSB) to discover the truth. The applicant then approached Nanking provincial government, officials there called the applicant crazy and referred her back to Dongtai government. 

15. When the applicant returned home to Dongtai she found police outside her home. Police told the applicant that the family of the deceased had decided not to lay charges and instead wanted compensation of Yuan [amount]. The applicant said that as she is from ‘generations of farmers’ they would not be able to accumulate such a sum even if they sold their home.

16. The applicant demonstrated at city hall and she was detained for [number] days. When she went to visit her husband he suggested that she leave China and she arrived in Australia [in] May 2016.

17. A statement of claim provided by the applicant states:

    ·Whilst the applicant and her husband were working in [Country 1] they were converted to the faith of I-Kuan-Tao through a Chinese preacher. When they returned to China they set up an altar in their home and converted several of their family and friends.

    ·She was not aware at the time of lodging her PV that this was a ground on which she could seek protection. 

    ·In December 2016, after the applicant had arrived in Australia, she learned that police had gone to an I-Kuan-Tao gathering at her home and warned attendees that practice was forbidden. The applicant’s name was given to the authorities and the applicant’s family was asked by police to request the applicant return to China so that she could confess her offences. 

    ·She has continued her practice in Australia.

    ·A photograph of herself with I-Kuan-Tao practitioners in [Australia], as well as a card stating that she is a Taoist member.

18. The applicant attended a PV interview on 18 January 2017. Briefly the applicant claimed that:

    • her husband had witnessed a car strike and kill a woman, the driver had asked the applicant’s husband to fetch a phone from his vehicle and fled the scene, leaving the applicant’s husband to be caught and charged by police for the crime. Her husband denied responsibility
    • There were other witnesses at the scene who also gave police a true account of the incident but they too were disregarded.
    • The applicant and her husband were taken to the police station where the husband was eventually formally charged with the crime.
    • she went to Nanjing  for 2 days to appeal. Upon her return a person had approached her, telling her if she could provide Yuan [amount] then her husband would be released. He had been sent by the driver, and would also call and threaten her over the telephone.
    • The applicant’s husband’s case had gone to court in August 2016, after her arrival in Australia. She had departed China before her husband’s case was heard in court
    • In mid-January 2016 she went to Dongtai to protest and was arrested and detained for [number] days.
    • A person came in with pen and paper and asked her to promise not to appeal, as well as persuade her husband to confess.
    • After a few more days another person was sent to make the same request, this time applying ‘more pressure’. She refused to budge.
    • She then decided she was being stubborn and ‘gave in’, telling her captors she would try to persuade her husband to confess.
    • After her release the applicant was permitted to see her husband for the first time since the day of the incident. The applicant’s husband was ‘completely changed’, telling the applicant he had been beaten and threatened that if he did not confess his family would not have a peaceful life.
    • the applicant’s husband told her that she should leave China, that he knew her personality and that if she remained in China she would continue to fight for justice and bring further trouble upon herself
    • Lawyers had not told her what they are going to do and ‘failed’ the case. Her husband was sentenced in August 2016.
    • Someone had been engaged by the true driver to threaten the applicant’s mother.
    • She had also felt that she was being watched but did not know why.
    • She was threatened by the driver and the family of the victim.

19. The delegate stated that the applicant provided copies of documents concerning her husband’s arrest and imprisonment, accompanied by translations. He was imprisoned for [number] years. These documents were not in the Department file.

    REASONS AND FINDINGS

20. The applicant's identity has been accepted by the Department in her visa application. On the basis of her Chinese passport I accept that the applicant is a national of the PRC and is not a national or citizen of any other country. I accept that she does not have a right to enter and reside in any country other than China. Therefore I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant's “receiving country” for the purposes of s.36(2)(aa).

21. I note that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. 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 be possibly true (see MIMA v Rajalingam (1999) 93 FCR 220).

22. 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 that the particular 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).

23. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

24. The applicant was put on notice that the department did not accept her claims. The applicant did not wish to attend a Tribunal hearing and I was unable to explore the applicant’s claims with her.

25. Without further information from the applicant I am unable to be satisfied that the applicant’s husband was accused of driving a vehicle that killed a pedestrian, that police arrested and subsequently imprisoned her husband, that she petitioned officials in [another region] that she approached Nanking provincial government, that the family of the deceased had decided not to lay charges and instead wanted compensation from her of Yuan [amount] and that she was detained for [number] days, pressured, harmed and released. Without further information from the applicant I am unable to accept that the applicant’s husband was beaten or imprisoned and sentenced to [number] years for a crime he did not commit. Without further information I am also unable to be satisfied that the applicant’s mother was threatened, that she had been watched or that she was threatened by the driver of the car and the family of the victim. The applicant’s evidence is lacking in detail.

26. I have considered the delegate’s statement in the Department decision that copies of documents about her husband’s arrest and imprisonment were provided by the applicant to the Department. The applicant was put on notice that the Department place no weight on those documents. As DFAT Report China 2017 has assessed that fraudulent documents are being used in support of visa applications, I place no weight on those documents.

27. DFAT report China 2017 states that Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. Therefore I do not accept that the applicant had an adverse profile when she departed China for Australia.

28. As for her conversion to I-Kuan-Tao through a Chinese preacher and her claimed practice and conversion of several of their family and friends and that police had gone to an I-Kuan-Tao gathering at her home and warned attendees that practice was forbidden, that her  name was given to the authorities and the applicant’s family was asked by police to request the applicant return to China so that she could confess her offences, without further information from the applicant I am unable to accept that these incidents occurred or that she is a I-Kuan-Tao practitioner.

29. The applicant was able to exit and enter China in 2010 after her claimed detention, without any harm, I am satisfied that the applicant departed China as the holder of a [temporary] visa to Australia.

30. Therefore, I do not accept that the applicant departed China fearing harm.

31. I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past.

32. I am required to consider if the applicant would suffer serious harm in the future if she were to return to China for one or more of the reasons mentioned in paragraph 5J(1)(a) or if she were to suffer substantial harm.

33. Subsection 5J(6) of the Act provides that conduct engaged in by a person in Australia must be disregarded in determining whether the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, unless the person satisfies the decision maker that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee.

34. As the applicant did not attend the Tribunal hearing and I am unable to explore the applicant’s claims and as I do not accept that the applicant is a I-Kuan-Tao practitioner, as stated above, I do not accept that the applicant has continued practising I-Kuan-Tao with practitioners in Australia.

35. I have considered the applicant’s claims that she had continued her practice in Australia of I-Kuan-Tao.  She has provided a photograph of herself with persons she claims are I-Kuan-Tao practitioners in [Australia], as well as a card stating that she is a Taoist member. Without further information I am unable to be satisfied that the photograph is a genuine photograph of I-Kuan-Tao practitioners in [Australia]. 

36. I am satisfied the applicant did not suffer any harm in China and I am satisfied that the applicant does not have a profile that would cause her to be of any interest to the authorities in China.

37. I find that the applicant does not have a real chance that, if returned to China, she would suffer persecution for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of persecution for these reasons.

38. I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).

39. As stated above, I reject the applicant’s claim she has suffered persecution or any harm in China.  Therefore I find remote the chance that the applicant, will suffer significant harm on return to China.

40. I am 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 the applicant will suffer significant harm ie that there is a real risk that she will be arbitrarily deprived of her life, that the death penalty will be carried out on her, that she will be subjected to torture, that she will be subjected to cruel or inhuman treatment or punishment or that she will be subjected to degrading treatment or punishment.

41. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    CONCLUSIONS

42. For the reasons given above, the Tribunal finds that there not a real chance that the applicant will face persecution for one or more of the reasons mentioned in paragraph 5J(1)(a)  if she was to return to China, now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under S.36(2)(a).

43. 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).

44. 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

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

    Lilly Mojsin
    Member

    ANNEXURE A

    CRITERIA FOR A PROTECTION VISA

46. 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.

1. 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.

2. 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 themselves 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).

3. 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.

4. 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

5. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.

   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.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   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 the 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.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (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.

   …