1707031 (Refugee)

[2022] AATA 2444

1707031 (Refugee) [2022] AATA 2444 (29 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707031

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Damian Creedon

DATE:29 May 2022

PLACE OF DECISION:  Perth

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

Statement made on 29 May 2022 at 4:32pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – religion – Christian – race – ethnic Chinese – conversion of Muslims – charges of apostasy – physical assault – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Chan v MIEA (1989) 169 CLR 225
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 dependants.

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 8 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant, [an age]-year-old citizen of Malaysia, arrived onshore [in] August 2016 holding an Electronic Travel Authority (Class UD) (Subclass 601) visa.

3. The applicant applied for a protection visa on 22 August 2016 and was granted a bridging visa which remains in force.

   Protection visa application

4. In his protection visa application and supporting materials the applicant claims to fear returning to Malaysia because he is a Christian and has “attracted” Muslim apostasy; specifically, he makes the following written claims (uncorrected):

   [Why did you leave your home country?]

   I am a Christian and I has attracted many follower of Islam entered the Christian religion.  Cases of conversion in Malaysia have been plagued by official dissension and charges of apostasy as Muslim authorities challenged verdicts by Secular Courts in Shari’ah tribunals.

   [What do you think will happen to you if you return to your country?]

   I will be put into Islamic law so the issue of apostasy is related to Islamic Law so it’s under the Shari’ah Court and the Civil Court cannot intervene.

5. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

6. The applicant applied for a review of the delegate’s decision.

   Application for review

7. The applicant was not represented in relation to the review.

   Evidence

8. The Tribunal has before it a range of material, including, relevantly:

   a.A copy of the applicant’s Malaysian Passport;

   b.The applicant’s protection visa application forms signed on 29 July 2016;

   c.The delegate’s protection visa decision record dated 8 March 2017 (delegate’s decision record);

   d.The review application form lodged with the Tribunal on 4 April 2017 which included a copy of the delegate’s decision record;

   e.Undated submissions provided by the applicant to the Tribunal, including references to a “Wikipedia” entry entitled “Freedom of Religion in Malaysia”; and

   f.The applicant’s response to the Tribunal’s request of 18 October 2021 for information pursuant to s.424(2) of the Act.

9. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Malaysia, 29 June 2021 (DFAT Report).

   Hearing

10. The applicant appeared before the Tribunal on 8 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    Applicant’s oral evidence

11. The following is a summary of the applicant’s evidence to the Tribunal:

    a.The Tribunal asked the applicant about the completion of his Protection Visa application forms.  The applicant stated that he had filled out the forms himself with assistance from another person who described themself as an “agent”.  He stated that the contents of the application were “not really” accurate and that he wished to add several matters.

    b.The applicant confirmed that his parents are resident in Sabah, Malaysia, and that he has one [sibling].  He has no family in Australia; he is not married and has no children.  The applicant is currently working in Australia, as [an occupation 1] at [Employer 1].

    c.The applicant stated that he completed his high schooling in Malaysia to “[grade]” and, after leaving school, completed a diploma in “[a named subject]”.  The applicant worked in Malaysia prior to coming to Australia.  Upon completing his diploma, the applicant worked as  [an occupation 2] and then as [an occupation 3], firstly in Johor and then in [Country 1] for two years before he returned to Malaysia.  He then worked in “customer service”; his job immediately prior to his arrival onshore was as an “operations manager” in a [company] called “[Employer 2]”.  When pressed, the applicant stated that the company’s business was “[occupation 4]”.  The applicant held this position for approximately eight months prior to his arrival onshore.

    d.The applicant stated that he arrived in Australia [in] May 2016, and that his motive in coming to Australia was for a holiday; he stated that he then “found out” that Australia has “much more human rights” and that he preferred to stay here and to “get some protection” from Australia”. 

    e.When pressed as to why he needed protection, the applicant stated that “a few incidents” had happened to him in Malaysia.  When further pressed the applicant stated that Malaysia was a multi-cultural country; he stated that he identifies as a “Chinese-Malaysian” and as a Christian.  The applicant stated that when he was in “[grade]” at school, after Church one Sunday he walked through the street where he saw a “few people dressed like Malays”, and who were ethnically Malay.  He stated that these people dragged him up a staircase three storeys high.  He stated that they asked him “why are you Christian?”, why are you going to Church?”.  He stated that they the kept saying “Allah”, “Allah”.  He stated that he was then “beaten up” with a brick.

    f.In discussing his religious beliefs, the applicant stated that he is a Christian and that his family “were”, but that after “[grade]” (when he was [age] years old), his family ceased attending Church and began following the Buddhist faith.  The applicant stated that he remained a Christian.  He stated that he attended Church “most Sundays” and been doing so since he was “very small”; he is of the Baptist or Presbyterian denomination. 

    g.When pressed for further details by the Tribunal regarding the incident when he was in “[grade]”, the applicant stated that at that time he would have been around [age] years of age; the incident occurred as he was returning from attending Church, at “around 12 o’clock”; it was a “normal Sunday”, not a particular day in the Christian calendar; the applicant left the gathering after Church and began walking home, in the same direction as “a friend”. 

    h.After parting ways with his friend, he encountered four “Islamic-looking” people who blocked his way.  The applicant stated that they looked “Malay” and some of their conversation was “Malay”.  The applicant stated that his initial thought was that he was being robbed, however one of the four took him in a “headlock” and he was dragged onto and up the external staircase of an adjacent building.  The applicant stated that the building was a commercial building, and that no other persons were present in the building or on the street.

    i.While being held in the headlock, the applicant stated that he was asked, “why are you a Christian?”, “why do you go to Church?, “why don’t you believe in Allah?”.  The applicant was then punched with a fist and struck on the mouth with a brick, losing two teeth as a consequence.  The applicant stated that he was “screaming” and calling out loudly and that the assailants “ran off” leaving him lying on the stairs.

    j.The applicant stated that he felt traumatised and ashamed at having been attacked.  He stated that he went home but did not tell his parents what had happened, instead telling them that he had fallen from a bike.  He received dental treatment and currently has two false front teeth.  When pressed as to why he did not tell his parents, the applicant stated to the effect that he felt they would use the incident to encourage him to convert to Buddhism.   

    k.The applicant stated that the second incident occurred after he had finished his education, including his diploma, and had moved to Kuala Lumpur to work as [an occupation 2].  He stated that he was “around [age]” years of age at the time.  When pressed as to the details of the incident, the applicant stated that he was walking on a street “around noontime” where there were “a few people”.  It was not a workday for the applicant.  Two men of Malay ethnicity, not dressed in “Islamic” clothes, approached him, and asked him if he was a Christian.  The applicant could not say why he was singled out to be asked.  This occurred near a train station.  Upon answering “yes”, the men punched him in the mouth and ran off.  The applicant lost a further tooth as a result of the incident.

    l.The applicant stated that he reported the incident at the local police station, that a handwritten report was taken by the police but that he was told by police that they could do nothing, that “this is Malaysia” meaning that it is an Islamic country, and he (the applicant) should expect this.

    m.The applicant stated that as a result of these incidents he felt fear walking in the streets in Malaysia.

    n.The applicant stated that he experienced no other similar incidents in Malaysia or in [Country 1] on account of his religion.

    o.The applicant states that he still considers himself a Christian but has not been attending Church in Australia as he is still establishing a “stable identity” in Australia, meaning his visa status.

    p.When asked by the Tribunal whether, in Malaysia, the applicant had ever sought to attract converts to the Christian faith, the applicant stated he sometimes brought friends to Church social activities on Sundays.  When asked whether he ever encouraged anyone to join the Christian faith, the applicant stated that he had encouraged his friends to attend Church social gatherings.

    q.When asked why he was afraid to return to Malaysia, the applicant stated to the effect that he still felt trauma from his experiences of having been attacked. 

    r.The applicant stated that he felt that similar incidents could happen to him again; when pressed as to why, the applicant stated that he could see no reason why he was attacked before and that the same thing could happen again.  He felt that Malaysia was “definitely” a more dangerous place than Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Criteria of a protection visa

12. 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 he 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.

13. 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.

14. 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).

15. 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.

16. If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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

17. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Assessment of Claims and evidence, and findings:

18. 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 an 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or his. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

19. 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.

20. 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’. 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.

21. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

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

    Findings

23.   In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully, and the Tribunal considers that the applicant provided a consistent account of his circumstances.  Overall, the Tribunal is persuaded as to the general truth of the matters he claims, in particular that:

a.he is of the Christian faith;

b.he openly practiced his faith while resident in Malaysia; and

c.on two occasions, once when he was [age] years old, and once when he was [age] years old, he was accosted by individuals who assaulted him for his religious beliefs.

1. The Tribunal does not accept, however, that the applicant was proselytising his faith by, on his evidence, merely inviting his friends to, or encouraging them to attend, social gatherings after Sunday Church services.  The Tribunal also rejects the applicant’s written claims to having “converted” persons from the Islamic to the Christian faith as these claims were unsupported on the evidence.

2. The Tribunal acknowledges the Wikipedia article provided by the applicant; however, the applicant did not raise any concerns in oral evidence in relation to his overall religious freedom in Malaysia.

   Country information

3. According to the most recently published census results from 2010,[1] Muslims comprise 61.3 per cent of the Malaysian population.  Christians accounted for close to 10 per cent of the total population and are predominantly located in Sabah and Sarawak.  Article 3(1) of Malaysia’s Constitution states “Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation”.  Article 11(1) states every person has the right to profess and practise his religion and, subject to clause (4), to propagate it.  Notably, DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis and are usually able to worship without significant official interference.[2]   

   Analysis of claims

   [1] Official results from the 2020 census had not been published at the date of this decision.

   [2] DFAT Report, paras [3.53] – [3.58]

4. While the Tribunal acknowledges the applicant has been a victim of violence on two separate occasions, and that his assailants cited the applicant’s religion as their motive, that violence appears on the evidence to have been opportunistic and random in character, rather than manifesting as part of a course of systematic conduct directed at the applicant.[3]

   [3] Chan v MIEA (1989) 169 CLR 225

1. This view of the evidence is consistent with the country information set out above, in particular DFAT’s assessment that Malaysian Christians generally live free from societal discrimination on a day-to-day basis and are usually able to worship without significant official interference.

2. The Tribunal finds, therefore, that the applicant does not have a real chance of persecution on account of his religion of the nature required by the Act.[4]  The Tribunal finds the applicant does not have a well-founded fear of persecution and is not a refugee as set out under the criteria in s.36(2)(a).

   [4] s.5J(4)(c) of the Act

3. 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). 

4. The Tribunal is also required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act.  That is, whether the applicant will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the applicant; or the applicant will be subjected to torture; or the applicant will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment.  Considering the applicant’s individual circumstances, the opportunistic and random character of the attacks he described, and the country information cited, the Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A).

5. Having made these findings, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under its complementary protection obligations in s.36(2)(aa).

6. 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

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

   Damian Creedon
   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.

   …

   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.

   …