1711310 (Refugee)

[2021] AATA 486

1711310 (Refugee) [2021] AATA 486 (22 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711310

COUNTRY OF REFERENCE:                   China

MEMBER:David McCulloch

DATE:22 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 February 2021 at 9:35am

CATCHWORDS
MIGRATION – protection visa – China – religion – parents Falun Gong practitioners, but applicant not a practitioner – parents detained for three years, applicant for one month – country information – no appearance at hearing or other response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 4 May 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 the People’s Republic of China, applied for the visa on 3 November 2016. The delegate refused to grant the visa.

3. The applicant was invited to appear before the Tribunal on 11 February 2021. The applicant provided no response to the invitation and did not appear before the Tribunal at the time and place scheduled, nor did he make any contact with the Tribunal to inform it of any change to his contact details or any reason why he was unable to attend the hearing.

   Criteria for a protection visa

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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. The Tribunal has before it the DFAT Country Information Report – People’s Republic of China, 3 October 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant was granted an FA 600 visitor visa on 19 May 2016, and arrived in Australia [in] August 2016. The applicant applied for the protection visa on 3 November 2016. In the application forms, the applicant states that he visited [Country] [in January 2016].

12. The following information is apparent from the application for protection forms. The applicant was born on [Date] in Anhui Province, China. The applicant lists no religion and no ethnicity. The applicant speaks, reads, and writes Mandarin. The applicant married on [Date] in Shuzhou City. The applicant’s mother, father, and wife reside in China, and the applicant is not in contact with them. The applicant lists one address in Shuzhou City, Anhui Province, China from birth until August 2016. The applicant attended primary and secondary school from September [year], graduating from [Middle School] in July [year]. The applicant worked [for] [Company 1], Shuzhou City from May 2002 until March 2010. The applicant then worked [for] [Company 2], Shuzhou City from November 2010 until August 2016.

13. The applicant provided a written statement setting out his claims for protection as follows (not corrected for spelling or grammar):

    My name is [the applicant name]; I am from Anhui Province P.R.China. I came to Australia [in] August 2016 with my Tourist visa. After I arrive in Australia, I started my activities in Sydney, now my visa is going to finish soon, so I rang home, after I find the situation from my hometown, I have to seek protection from Australia Government to escape persecution from the Chinese government.

    I was born in [Date] in Anhui Province; my parents are Falun Gong practicers. They started to know Falun Gong in beginning of 1999, at that time they could initial understanding that Falun Gong, first made public in May of 1992 by Master Li Hongzhi, is one of a variety of Chinese health and spiritual practices known loosely as “qigong.”. At that time they did not quite pay attention to its intention. Because they always doing morning exercises and they saw people practice Falun Gong in the park, and they told my parents that to practice Falung Gong is good for the body especially for long-term illness and extremely pain. So they start to know Falung Gong at that time, and follow other people to practice, sometime they discuss materials with other members in our home. At that time I was only [Age] years only and know nothing about Falun Gong, I can only hear some of the discussion while they talk about Falung Gong at home.

    But since July 1999 communist officials, most notably Party head Jiang Zemin, have campaigned to “eradicate” Falun Gong and any support for it among the Chinese people or foreign governments. From that time, Falun Gong was condemned to be the “illegal organization” and was unreasonably charged by Chinese government. In October 1999 it was grouped into the “evil religion” and was once again charged with no acceptable reason, hundreds of thousands of Falun Gong practitioner suffer relentless abuse in prisons, forced labor camps, and brainwashing facilities. So my parents have to stop practicing in public, but still discuss and practice with other members at home.

    In 2010 our neighbor found out that my parents discuss and practice Falun Gong with other members at our home, they report to the Director of Neighborhood Committee. One day, the local police arrived to my home, and arrest my parents and two Falun Gong members. They also send police to my work place and took me away. I didn’t know what’s wrong with us. They took us into detention centre and separated us into small cells. They asked me if I knew that my parents are practice Falun Gong and meeting with other members at home, I told them that I did not know because I was always at home, they said that I was not telling them the true. Therefore the frustrated police shouted and abuse at me, I was brutally kicked and beaten several times, which made my head hit the wall, my forehead was bleeding. They forced my parents to give up Falun Gong and told they that the practice was an evil cult. But my parents said they will not give up, so they had been locked up in the labor camp for 3 years. During these 3 years, no one allowed to visit them.

    One of my workmate found out my situation, he knew a local news reporter and told him my situation and asked him for help. The news reporter reported my story in the newspaper, and caused a great reaction. The police released me after one month because of the pressure of the public opinion. But when I return to work, the Manager ordered me to drop out of my job due to the fear of the impact of the company’s reputation. Therefore I had forced to quit my job.

    In late 2013, my parents released from labor camp and return home. They didn’t believe Chinese government anymore and they strong believe that Falun Gong is the only way that can survive them. Therefore, they still practice Falun Gong underground no matter they had to afford any cost. Later the local police found out that they still practice Falun Gong underground because our neighbor report to the police station privately. My parents found out that few strangers around out home; they thought that they had been monitor by the police. They do not care of themselves but they were so worry about me, they didn’t want me to get hurt like before. In late 2015 they asked one of their Falun Gong members to help me go onboard and escape China. At the end that member help me to obtain an Australia visa using his relationship, [in] August 2016, I left China from Nanjing.

    After I arrived in Australia, I rang my friend at home, she told me that the officers went to our home and search our home and find out couple pieces of materials. My friend told me that my parents had been treating as disseminated Falun Gong “evil religion”, damage the peaceful society’s development and the police took them away; my friend told me not to return home or rang home anymore. After I had a deeply thinking, I thought I cannot go back to China, because if I go back to China, I will be implicated.

    One day I met one Falun Gong member [when] I walk passed a park near [Location], and she was from China too, she introduced me Falun Gong Associate in Australia, she also told me that there might have a change for me to apply for protection from the Australia Government. I want to relax our nervous mood, Australia, as the democracy country, is a peaceful and beautiful national territory. Firstly, Australia is 3 biggest country accept refugees in the world, in the past 50 years totally have accepted 620,000 refugees (including theirs family member), the average surpasses 10,000 every year; Also, Australia have no discrimination immigration policy, any discrimination behavior and the opinion will violates the law; Furthermore, Australian society legal system is perfect, the democracy is free, tolerant and harmonious as the mainstream are social values. Falun Gong takes a legitimate registration, as a social group, the members have not done any violated matters in Australia; however, they contribute many good behaviors for the Australian society. I am looking forward to stay in Australia, meanwhile, I realize the risks that once I will not be granted the protection visa. In other words, when I go back to China, the authorities of China will not protect me, by contraries; I will be prosecuted and seized as a prisoner. However, this is the only way for me to face with Falun Gong’s three values—truth, compassion, and tolerance. I believe Australia government and Australians will respect personal beliefs and would like to provide our people a piece of peaceful territory.

    Independent information

14. The DFAT Country Information Report – People’s Republic of China, 3 October 2019 provides the following information on Falun Gong:

    Falun Gong (also known as Falun Dafa) is a spiritual movement that blends aspects of Daoism, Buddhism, and Qigong (traditional breathing and meditation). Freedom House estimates seven to 20 million people currently practice Falun Gong in China. Falun Gong practitioners claim the movement has ancient origins, but it first appeared in its modern form in 1992, when founder Li Hongzhi began teaching the exercises in Changchun, Jilin province. Unlike other religions, Falun Gong focuses on private exercises and meditation.

    The government declared Falun Gong illegal and ‘an evil cult’ after a large protest by followers at the CCP headquarters in Beijing in 1999. The CCP maintains a Leading Small Group for Preventing and Dealing with the Problem of Heretical Cults to eliminate the Falun Gong movement and to address ‘evil cults’. An extrajudicial security apparatus known as the 6-10 Office (named after 10 June 1999 crackdown against Falun Gong) has the task of eradicating Falun Gong activities. The 6-10 office has reportedly created specialised facilities known as ‘transformation through re-education centres’ to force practitioners to relinquish their faith. Falun Gong reportedly remains active throughout China, but most prominently in Shandong and northeastern China, although Falun Gong’s illegal status makes this difficult to verify.

    Since the abolition of re-education through labour centres in late 2013, Falun Gong practitioners have reportedly been subjected to residential detention, criminal and other forms of administrative punishment (see Arbitrary Arrest and Detention), or have been released after receiving propaganda training. Freedom House states it independently verified 933 cases between 1 January 2013 and 1 June 2016 of Falun Gong adherents receiving prison sentences of up to 12 years for their beliefs.

    Falun Gong members do not openly proselytise in mainland China, although the movement is active in Hong Kong (where it remains legal) and abroad. Falun Gong practitioners identify potential new members and slowly introduce them to the practices and beliefs of Falun Gong. Falun Gong practitioners are generally able to practise privately in their homes. Once known to authorities, colleagues or neighbours, however, Falun Gong members face widespread official and societal discrimination.

    Lawyers representing Falun Gong practitioners claim a typical Falun Gong case involves: a period of initial investigation; the suspect having their personal belongings confiscated and being placed in custody for three to six months; trial by court; and then sentencing. Arrested Falun Gong practitioners (leaders and followers alike) commonly receive sentences of three to seven years’ imprisonment. Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. Falun Gong practitioners and their lawyers claim that judges and lawyers are actively discouraged from taking on Falun Gong cases, and that Falun Gong practitioners have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims.

    On release from detention, Falun Gong members can be placed under surveillance and can experience difficulties finding employment beyond low-skilled jobs. Discrimination against Falun Gong practitioners can extend to family members and can result in the loss of employment, pensions or social relationships. Government officials, members of the police force and employees of state-owned enterprises are commonly required to sign a statement that they and their families are not Falun Gong members. A widespread and sustained government communications campaign against Falun Gong has effectively discredited it within mainstream Chinese society.

    Unlike other officially designated cults, the government regards Falun Gong practitioners as political opponents rather than victims, and treats them accordingly (see Political Opinion (actual or imputed)). Lawyers who defend Falun Gong practitioners are frequently denied access to their clients in detention or court, and are subjected to adverse treatment and physical and electronic surveillance by authorities (see Human Rights Defenders (including Lawyers)).

    Falun Gong practitioners known to the authorities would likely find it difficult to obtain a passport. Sources report some migration agents, particularly in transit countries, may have coached would-be asylum seekers on Falun Gong practices to facilitate their claims.

    DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination.[1]

    [1] DFAT, Country Information Report – People’s Republic of China, 3 October 2019, pp. 33 – 34, paras [3.96] – [3.104].

    Hearing, credibility, findings, and assessment

15. Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and, in the circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

16. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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 him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

17. The Tribunal is satisfied that the applicant is a citizen of the People’s Republic of China and accordingly his claims will be assessed against the People’s Republic of China.

18. The Tribunal has had no opportunity to question the applicant about his claims in order to explore the detail of the claims and to test his credibility. There are many credibility concerns that the Tribunal had with the applicant’s claims, including significant discrepancies between written claims and evidence in the interview with the delegate.  The Tribunal would also have explored with the applicant the plausibility of authorities in China having any adverse intention towards the applicant, when he himself was not a Falun Gong practitioner, but only his parents.

1. Given the applicant’s non-attendance at the hearing and the Tribunal’s inability to explore the issues it would have needed to explore before being satisfied of the applicant’s claims, the Tribunal is not satisfied as to key substantive claims made by the applicant.

2. The Tribunal is not satisfied that the applicant suffered any form of harm, including detention and questioning by authorities, as a result of the applicant’s parents being engaged with Falun Gong. The Tribunal is not satisfied that the applicant was detained on any occasion for this reason or imprisoned for any length of time. The Tribunal is not satisfied that Chinese authorities have had or currently have any adverse intention towards the applicant as a result of his parent’s practice of Falun Gong or for any other reason.

3. Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed. 

4. In summary, the Tribunal is not satisfied that there is a well-founded fear of the applicant being persecuted for any reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of the applicant suffering significant harm.

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 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 criteria in s.36(2).

   DECISION

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

   David McCulloch
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   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.

   …