1715806 (Refugee)

[2023] AATA 2514

1715806 (Refugee) [2023] AATA 2514 (28 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715806

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Justin Meyer

DATE:28 June 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2023 at 4:20pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – membership of particular social group – homosexual woman – mocked and ostracised at school and in workplace – family and societal attitudes – no appearance at hearing or other response – undetailed claims and no supporting evidence or submissions – country information – legal rights and widespread LGBTI scene – effective police and judicial system – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425, 426A
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 July 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 10 October 2016. The delegate refused to grant the visa on the basis that there was not a real chance that, if the applicant were returned to Taiwan, she would be persecuted for one or more of the reasons mentioned in s.5J(1)(a) of the Act and therefore was not a refugee as defined in s.36(2)(a) of the Act. It was also found that there was no real risk of significant harm per s.36(2)(aa) of the Act (complementary protection).

   Failure to appear at hearing

3. The Tribunal wrote to the applicant on 8 June 2023 inviting her to appear at a hearing on 28 June 2023 per 425(1). The Tribunal advised that it had considered all the material before it relating to her application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it to give evidence and present arguments relating to the issues arising in her case at the hearing on 28 June 2023. The letter advised the applicant that if she did not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. The letter also advised the applicant that if she were not able to attend the hearing she should advise the Tribunal as soon as possible.

4. No response to this letter was received from the applicant and the applicant did not attend the hearing scheduled for 28 June 2023. The invitation was sent to the email address provided by the applicant. Two SMS reminders were sent to the applicant as reminders of the hearing date location and time. There was no response. 

5. As the applicant has not responded to the invitation to attend the hearing, and has not contacted the Tribunal to explain her non-attendance or sought to engage further in her review process, including through the provision of further submissions, the Tribunal decided to proceed to make a decision on the review on the evidence available to the Tribunal.

6. Given that the applicant failed to attend the hearing and provided no explanation for not appearing, the Tribunal is entitled to proceed pursuant to section 426A(1A)(a) of the Act. It is appropriate in these circumstances for the Tribunal to make a decision on the review without taking further action to allow or enable the applicant to appear before it.

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

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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

14. The issues in this case are whether the applicant has a well-founded fear of being persecuted in Taiwan for one or more of the five reasons set out, and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan there is a real risk that she will suffer significant harm.

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

    Identity

16. The applicant’s identity is established as a [age]-year-old female, as evidenced by a Taiwanese passport. Thus, there is passport evidence before the Department and the Tribunal confirming identity and nationality.

17. At the outset, it is appropriate to highlight that a decision maker is not required to make the applicant's case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

    The applicant’s claims to the department

18. The applicant's claims for protection are summarised below:

    ·The applicant claims that she is a homosexual and that homosexuals are not accepted by the Taiwanese society.

    ·The applicant claims that Taiwanese are 'very conservative' and that she would not be able to have a 'normal life' if she returned.

    ·The applicant claims that there is no law to protect homosexuals in Taiwan.

    ·Substantial direct quotations from answers to the visa application form included the following (as submitted):

    When I were in kindergarten, I have found I am different from other girls. I like boys toy not girl's toy. I don't wear skirts I always, cut my hair very short. I remembered one time I went to bathroom, other girls didn’t let in because they said I am a boy. After that, I don't like talk to other people. And I forced myself to keep long hair. When I were in elementary school, I were often mocked by classmates because my character is like a boy, however, I have a girl's face. During the high school, the internet has become popular, I searched online and I knew this is called homosexual, From Internet, I found a girlfriend. However, my parents felt very shameful and didn't allow me to go home. I have lived with my friend for couple years. I am not accepted by society. Either in public area or in workplace, I am always disdained by other people. After graduated from high school I found a job and met my current girlfriend. We have known each other 8 years. Her parents are also very conservative. I daren't visit her home.

    At workplace, our workmates also believed we are lesbians. I don't like people treat me as a freak, I want a normal life like other people.

    Therefore I come to Australia. Taiwanese are very conservative, if I go back, I can't have a normal life.

    There is no law to protect us.

    Deep down Taiwanese don't like homosexual. They contempt us. I am harmed in my heart

19. There were no other submissions, to the department or to the Tribunal. There was no departmental interview.

20. I am satisfied that the applicant had notice that the Tribunal did not have sufficient information to make a favourable decision on the information supplied by the applicant, and that the applicant has had a reasonable opportunity to provide any further information to the Tribunal in support of her claims and has not done so.

21. I am satisfied as to the applicant’s identity and the validity of her identity documents. I find that the applicant has Taiwanese nationality, and that the receiving country for the applicant on this review is Taiwan.

    Is the applicant a refugee under the Act?

22. The information presented by the applicant about being homosexual and that homosexuals are not being accepted by the Taiwanese society is lacking in detail. The applicant has provided virtually no details about how being mocked for appearance and her sexuality has led to there being a well-founded fear of persecution or a real chance of significant harm.

23. The claimed contemporary harm has uncertainty about when this began, how often it occurred, when and where it occurred. She has not provided documents to support her case for example (although this is not a requirement). Further lack of detail is seen in an absence of clear timing or any other corroboration, although this is, again, not a requirement.

24. In the absence of further information, I am unable to determine if the applicant has suffered persecution in the past, or whether her claimed fear of persecution in the future falls within the grounds in grounds in s 5J(1)(a) of the Act.

25. In light of the lack of sufficient information, I am not satisfied that there is a real chance that the applicant would be persecuted for any reason, if she returned to Taiwan, now or in the reasonably foreseeable future.

26. The applicant did not attend the Tribunal hearing despite being advised that the Tribunal had considered all the material before it in relation to her application but it was unable to make a favourable decision on that information alone. Had the applicant attended the hearing, the Tribunal would have explored the applicant’s claims with her and sought further information from her on a range of details relevant to her claims.

27. On the basis of the available evidence, the Tribunal does not accept that the applicant suffered threats or mistreatment and does not accept that the applicant left Taiwan to escape persecution because of her sexuality, attitudes of family and society or any other claimed or implied reason.

28. On the evidence provided by the applicant, no basis is present for concluding that the applicant has been subjected to persecution due to threats or attitudes from people because of being homosexual or LGBTIQ or for any other reason, or that there is a real chance of this occurring if she is returned.

    Country information on the situation for members of the LGBT community in Taiwan.

29. Lesbian, Gay, Bisexual, Transgender, Intersex (LGBTI) LGBTI people have some legal protections. Taiwanese law prohibits discrimination in employment based on sexual orientation.[1] Non-employment related LGBTI discrimination is not outlawed, however a 2017 judicial interpretation found, at least in relation to same-sex marriage, that a list of constitutional protections against discrimination are ‘illustrative and not exhaustive’ and that therefore LGBTI people are constitutionally protected from discrimination.[2] Same sex marriage became legal in 2019.[3] Discrimination against LGBTI people remains widespread. Chinese culture has not had the same historical animosity towards LGBTI people as Western cultures, but interpretations of traditional views of family have been used in recent times to discriminate against LGBTI people[4]. Reported instances of violence against LGBTI individuals are rare and the US Department of state assesses police response to such violence to be adequate.[5]

    [1] 'Employment and employee benefits in Taiwan: overview', Thomson Reuters Practical Law, current from 1 January 2020, accessed 3 June 2020, p. 19, 20200603144915

    [2] 'Interpretation 748 (Taiwan Constitutional Court)', Constitutional Court (Taiwan), 24 May 2017, 20200604143509

    [3] 'Taiwan becomes first in Asia to legalise same-sex marriage', Guardian, 17 May 2019, 20200604151142; '#LoveWins in Taiwan', Human Rights Watch, 17 May 2019, 20200604151543

    [4] 'Same-Sex Marriage in Taiwan', The Diplomat, 5 January 2017, 20200604152210; 'China embraced gay ‘marriage’ long before Taiwan’s law. The West perverted history', South China Morning Post, 26 May 2019, 20200604153008

    [5] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.17, 20220413103515

    In July 2018 the Taiwan News noted that Taiwan was Asia’s most LGBT friendly destination. In expressing this conclusion it noted that Taiwan;

    ·Is the first country in Asia to approve same-sex marriage.

    ·Is home to the largest Gay Pride celebration in Asia.

    ·Has a long and rich culture of making LGBT themed movies and that Taiwan hosts the Taiwan International Queer Film Festival.

    ·Has a large number of LGBT advocacy groups in Taiwan including the highly influential Taiwan Tongzhi Hotline Association which provides support, education and counselling for the LBGT community and family members.

    ·Most Taiwanese cities boast LGBT-friendly bars and nightclubs. Taipei has biggest gay scene can be found including the Red House which is a cultural hub and houses more than 25 LGBT bars, restaurants and nightclubs.

    ·Has the first Chinese language LGBT bookstore.

    Reuters reported in 2017 that

    Taiwan's constitutional court declared on Wednesday that same-sex couples have the right to legally marry, the first such ruling in Asia, sparking celebration by activists who have been campaigning for the right for years.

    The court, known as the Judicial Yuan, said current marriage laws were "in violation of both the people's freedom of marriage ... and the people's right to equality", and it gave two years for legal amendments to allow same-sex marriage.[6]

    …

    Police Force

    Police are effective and the crime rate is low. Violent crime rates are among the lowest in the world and crime is generally low.[7] Excessive use of force by police is rare, and lawyers are allowed to monitor interrogations to prevent torture. A 2021 independent survey measuring public satisfaction with justice and crime prevention policies shows that for the third consecutive year more than 80 percent of the respondents were satisfied with the police in maintaining public safety.[8] The Constitution prohibits arbitrary arrest and detention and this principle is generally observed by authorities.[9]

    Judicial system

    Taiwan’s court system is free and fair. Courts are independent, fair and generally free of corruption.[10] All defendants are presumed innocent until proven guilty and have the right to a lawyer and to be present at trial.[11] The most recent data of the World Values Survey (2019) shows that 56 percent of respondents in Taiwan expressed at least “quite a lot” of confidence in the judiciary. Nevertheless, large numbers of Taiwanese harbour long-standing and deep-seated mistrust in the effectiveness, political impartiality and fairness of the court system and judges. Some Taiwanese feel that the judicial system is unfair in rulings related to high profile political cases and President Tsai highlighted judicial reform as one of the core policy goals of her administration in order to address popular mistrust in the country’s court system. The government has committed to addressing some of these concerns and has made some progress on judicial reform.[12]

    [6] ‘Taiwan court rules in favour of same-sex marriage, first in Asia’, Reuters, 24 May 2017. ‘Taiwan Country Security Report’, Overseas Security Advisory Council, US Department of State, 15 October 2021, 20220531165548 76 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F3, 20220614105607

    [8] ‘Public Satisfaction with the Police is over 80% in 3 Consecutive Years Citizens Support Drug Enforcement, Fraud Prevention and Various Measures by the Police’, Ministry of Interior ( Taiwan), 25 February 2022, 20220601101451

    [9]  'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.2, 20220413103515

    [10] 'Freedom in the World 2022 Taiwan', Freedom House, 9 June 2022, F2, 20220614105607 79 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729

    [11] 'Country Reports on Human Rights Practices for 2021: Taiwan', US Department of State, 11 April 2022, p.4, 20220413103515 81 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729

    [12] 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729 83 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, p.10, 20220224094729, 'BTI 2022 Country Report - Taiwan', Bertelsmann Stiftung, 22 February 2022, pp.10-11, 20220224094729

30. There is nothing in the light of the country information that alters my conclusion that the lack of sufficient information means I am not satisfied that there is a real chance that the applicant would be persecuted for any reason, if returned to Taiwan, now or in the reasonably foreseeable future.

31. It follows that I am not satisfied that the applicant has a well-founded fear of persecution pursuant to s.5J(1) of the Act, and I am not satisfied that the applicant is a refugee under s 36(2)(a) of the Act.

    Is the applicant entitled to complementary protection under the Act?

1. Having found that the applicant is not a refugee, I have considered whether the applicant is entitled to complementary protection under section 36(2)(aa) of the Act.

2. Based on my analysis of the evidence and findings above, 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 Taiwan, there is a real risk that the applicant will suffer significant harm.

   Is the applicant a member of a family unit?

3. The applicant does not make a claim based on membership of a family unit. As such, no family claims arise in this case.

   CONCLUSION

4. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

5. The information presented by the applicant is not sufficiently detailed to enable me to be satisfied that the applicant faces a real chance of persecution in Taiwan for any of the grounds in s 5J(1)(a) of the Act, or that there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Taiwan there is a real risk that she will suffer significant harm.

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

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

   DECISION

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

   Justin Meyer
   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.

   …