1717835 (Refugee)

[2023] AATA 2308

1717835 (Refugee) [2023] AATA 2308 (23 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717835

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Christine Cody

DATE:23 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 April 2023 at 4:51pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – fear of harm from the ruling government – corruption – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 426A, 441A
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
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 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 14 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, lodged a Working Holiday (TZ 417) visa application on 17July 2013. This was granted on 24 July 2013. [In] August 2013 he arrived in Australia. On 29 August 2014 he was granted a Student - ELICOS Sector (TU 570) visa. On 22 September 2016 the applicant lodged a Protection (XA 866) visa application[1].

   [1] Source: first page of the delegate’s decision record provided to the Tribunal by the applicant

3. Relevant law is set out in Annexure A.

   The application before the Department

   Protection visa application form and passport

4. The applicant provided a completed protection visa application form, a supporting statement, and a copy of some pages of his passport.

5. According to the application form, the applicant was born in Taipei City, Republic of China/Taiwan, and is now [age] years of age. He has never been married, he has no religion and he speaks, reads and writes in Mandarin. His family members, namely his parents and [age] year old sister are in Taiwan and he is not in contact with them. He resided at a single address in Taoyuan City, Taiwan from his birth until he left in August 2013. He completed high school until July [year] in Taiwan. He had one job in Taiwan from February 2008 to July 2013: he was an [Occupation 1] for a company in Taoyuan City.

6. [In] August 2013 he departed Taiwan legally, arriving in Australia with his passport issued [in] 2013.

7. He does not indicate that he undertook any education in Australia. He states that he has been employed from November 2013 to July 2014 as a [Occupation 2] in Melbourne and from October 2014 to November 2015 he was a [Occupation 3] in Sydney. From November 2015 he has been unemployed.

8. His claims are set out in his personal statement signed and dated 12 September 2016 as follows:

   … I came to visit Australia [in] August 2013, and I started my student visa on 7 August 2014. After I heard that my family was prosecuted by the Taiwan Democratic Progressive Party, I was afraid that if I return to Taiwan, I will face the same fate. So I am lodging my protection visa application, I hope that the Australia Government will allow me to stay in this peaceful country.

   My family have 4 members, my father [Mr A], my mother [Ms B], my sister [Ms C], and I. My parents are [Occupation 4]s in Taoyuan City Government. In 2006 the disclosure in the media after President Chen Shuibian from Democratic Progressive Party to reform the economy of Taiwan as an excuse. President Chen Shui-Bian and his family had corrupted trillions of money and state owned assets and transferred this money into their overseas banks. They have also stole more than 700 million new Taiwan dollars in one of the biggest bank in Taiwan. This causes the Taiwanese people's anti-corruption campaign from 2006 to 2008. This led Chen Shui-Bian to step down in the 2008 election.

   In 2014, the Democratic Progressive party support candidate has won the election and elected to the mayor of Taoyuan. After the new administration came into powder, they are deciding to find out and punish the whistle-blower and the key members who exposed the corruption case to public from 2008. They hit and exclude them with a variety of excuses and reasons, and then they had been dismissal from work.

   In 2016, after the Democratic Progressive Party candidates elected as Taiwan President, the DPP has punished the Government officials into the point of madness. My parents have suspended from work in the reason of negligence in work, the DPP also order me to return to Taiwan and help for investigation, the DPP slander and accused my father of taking bribes, the DPP also accused that I am helping my father to transfer the bribes to go abroad. I came to Australia in 2013 and I did not return home since then, if my father transferred the bribes to me, they will have record in my bank account. The purpose of the Taiwan government is to warn those Taiwanese whom against the DPP, they will face serious punishment if they said anything about their corruption.

   After deep consider with my parents at home, they warn me not to return to Taiwan, otherwise I will face the same situation as my parents suffered. 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 Taiwan, the DPP will not protect me, by contraries; I will be prosecuted and seized as a prisoner. I believe Australia government and Australians will respect personal beliefs and would like to provide our people a piece of peaceful territory

9. The delegate refused to grant the visa on the basis that the written claims when considered with the country information did not provide a sufficient basis to be satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in Taiwan. The delegate noted that:

   The applicant claims to fear harm from the government because they wish to punish those who are opposed to them and who want to expose any corruption within the government.

   …

   Based on the available country information, I am satisfied that there is no objective basis for the applicant’s fear of harm from the ruling government of Taiwan. Country information clearly indicates that the government allows its citizens to express their political opinion in the form of protests or demonstrations. Furthermore, the government is addressing issues of corruption through legislation and harsher penalties, with range of agencies established to prosecute and minimise corruption.

   Therefore I do not accept that the applicant has a well-founded fear of persecution on the grounds of political opinion.

10. The delegate did not accept that the applicant was a refugee or entitled to complementary protection.

    The Tribunal

11. On 13 August 2017 the applicant lodged an application for review to the Tribunal, providing a copy of the first page of the delegate’s decision record and notification of the refusal of the visa application.

12. On 15 August 2017, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, and he was requested to provide any relevant documents or information to the Tribunal as soon as possible. No contact was made and no documents were provided.

13. On 28 October 2019 the applicant contacted the Tribunal, noted that his review application was pending, and made a request for a letter to that effect. The Tribunal emailed him such a letter.

14. On 3 March 2023 the Tribunal wrote to the applicant, advising him that his file was being prepared to be given to a Tribunal member. He was asked to complete a pre-hearing information form and return it within 7 days. This form requested that if he had any additional evidence that is relevant to his application, please send it to the Tribunal as soon as possible. The form also asked the following questions:

    In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country?

15. The applicant did not respond and did not send the completed form to the Tribunal.  On 6 April 2023 the Tribunal sent the applicant an invitation to attend a hearing on 21 April 2023 at 9.00am. He was informed that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, and he was thus invited to give evidence and present arguments at a hearing. He was requested to complete and return the “Response to hearing invitation” within 7 days, and to provide all documents he intends to rely on to support his case by 14 April 2023.

16. Concerning the hearing, the applicant was advised that if he was not able to appear as scheduled, for instance, if he was not available on this day or if he believed that he would experience difficulty participating in the hearing as arranged, he was requested to let the Tribunal know this as soon as possible. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice.

17. The Tribunal also sent him an SMS reminder about the hearing 5 business days before the scheduled hearing.

18. The applicant did not respond to the hearing invitation and has not engaged with the Tribunal since the hearing invitation was sent to him.

19. The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why he did not attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that an SMS reminder was also sent to the review applicant about the hearing. In these circumstances, and 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

20. The applicant produced a certified copy of his passport issued by the Taiwan (Republic of China) authorities to the Department, and the Department accepted that he was a citizen and national of Taiwan (Republic of China), and assessed his claims against Taiwan (Republic of China). The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Taiwan (Republic of China), and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Taiwan (Republic of China).

    Satisfaction of claims

21. 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. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. 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, Prasad v MIEA (1985) 6 FCR 155 at 169–70).

22. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

23. The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Taiwan.

25. The applicant has only provided an application form and statement some 6 years ago, and has not provided any update information since then, despite being requested to do so and noting that his claim had been rejected by the Department. He did not take the opportunity to provide any additional detail either in writing nor orally at a hearing.

26. The Tribunal considered that there was a lack of detail and information relating to his claims. For example, he did not provide dates of when relevant incidents occurred (when his parents were suspended from their jobs, when they faced accusations, when his family was prosecuted, when he discovered that the authorities were after him, and when he discussed with his parents that he should not return home). He also did not provide other details of these events (for example whether an arrest warrant was issued). The applicant states in his statement that he lodged his protection visa application form [23 September 2016] “after I heard that my family was prosecuted”. He also states that that he had then discussed this with his parents who wanted him not to return home or he would suffer “the same fate”. The applicant does not however say what that fate was, namely what was the result of the prosecution. He does not say what his parents are charged with, he does not say whether they were convicted, he does not say what their sentence was. He does not give details of what their fate was (other than to say they were suspended from work, his father was “accused” of taking bribes and there is an investigation). It would appear from his ability to discuss the situation with his parents that they were not imprisoned. However, the applicant has not provided any updates or further details about his parents’ situation in the 6 years since he lodged his protection visa application. Nor has he provided updates about his own situation since lodging his protection visa application in 2016.

27. Further, there are a number of inconsistencies between his application form and his statement, as set out below:

28. Harm in Taiwan: In his application form he states that he experienced harm in Taiwan, and he refers to his statement, however his statement does not suggest that he suffered any harm while he was in Taiwan.

29. Seeking help: In his application form he states that he sought help within Taiwan after he experienced the harm, and he refers to his statement, however his statement does not suggest that he sought help from anyone.

30. Inconsistent evidence about proceedings taken against him: The applicant twice stated in his two application forms that he had not had any investigations/charges/ convictions against him:

    oIn response to the question as to whether he has been found guilty or convicted of any offence, whether he is the subject of criminal investigation or criminal charges pending, he states “NO” (Form C question 86)

    oIn response to the questions in Form B as to whether he has been charged with any offence that is currently awaiting legal action or convicted of any offence including one removed from official records or has been the subject of an arrest warrant or Interpol notice, he responded “NO” (Form B question 3)

31. However, his statement suggests the contrary. He states that he has been “ordered” to return to Taiwan for investigation, he is accused of accepting his father’s bribes (transferred to his bank account), and he states that as soon as he returns to Taiwan he will be prosecuted and seized as a prisoner. If these assertions in his statement were correct, the Tribunal would not expect that he would respond to the questions in the application form in the manner set out above.

32. As set out above, the Tribunal must reach a state of satisfaction that the applicant is a person to whom protection obligations are owed. The Tribunal considers that the applicant has not provided sufficient detail to make out his claims that he or his parents have had any difficulty with the authorities/ the ruling party in Taiwan, nor that he was of adverse attention to anyone, and that he was warned not to return, nor that he has a genuine fear of harm if he returns to Taiwan, nor that he faces a real chance or a real risk of any serious or significant harm in Taiwan. The Tribunal is not satisfied that the applicant or his parents have ever experienced adverse attention or otherwise from the Taiwanese authorities.

33. The Tribunal is not satisfied on the evidence before it that he faces a real chance of serious harm or a real risk of significant harm for any reason if he returns to Taiwan.

34. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Taiwan, nor that there is a real chance he would be persecuted for one or more of those reasons anywhere in Taiwan. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Taiwan, there is a real risk that the applicant will suffer significant harm.

    Conclusion

35. 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).

36. 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).

1. 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

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

   Christine Cody
   Member

   ANNEXURE A - CRITERIA FOR A PROTECTION VISA

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

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

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

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

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

   Mandatory considerations

8. 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.

   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.

   …