1730643 (Refugee)

[2021] AATA 3830

1730643 (Refugee) [2021] AATA 3830 (23 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1730643

COUNTRY OF REFERENCE:                   China

MEMBER:Damian Creedon

DATE:23 January 2021

PLACE OF DECISION:  Perth

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

Statement made on 23 January 2021 at 2:21pm

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – opposition to government corruption – land resumption – detention – physical assault – threatening phone calls and letters – state protection – decision under review affirmed

LEGISLATION

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

CASES

MIEA v Guo (1997) 191 CLR 559

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 29 November 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant, [an age]-year-old national of China, arrived in Australia [in] May 2017 on a Tourist visa.  The applicant lodged her application for a protection visa on 26 July 2017.

   Protection visa application

3. In her protection visa application, the applicant made the following claims:

   a.The applicant claims to have been the victim of persecution in China on account of her opposition to the illegal seizure of her family’s land.

   b.More particularly the applicant claims that she comes from a rural family.  Until 10 years ago (that is, around 2007), she and her parents were classified as ‘farmers’.  Her parents were held a ‘Permit to Use of Farm Land’ and were allocated [amount]MU of land.

   c.Around a decade ago farming households, including the applicant’s, were relocated to urban areas and ‘upgraded’ to ‘worker’ classification for employment in factories or other businesses.  Part of this reform process included an option for farmers who have held a ‘Permit to Use of Farm Land’ for more than 10 years to purchase that land from the local Government at a minimal cost. 

   d.The applicant’s family qualified to purchase their land under this reform and the applicant’s mother applied to purchase her blocks.  She was asked by the Village Head and Party Secretary, a [Leader A], to submit her Permit along with her application.

   e.The application has not proceeded as expected, and the applicant’s inquiries of [Leader A] as to its progress have proved fruitless.  The applicant claims that ‘buildings’ have been seen on the land in question and that she has discovered that the ownership of the block has been transferred to [Leader A’s] wife.

   f.The applicant and her mother went to see [Leader A] at his office in May of 2016 and were told that he had retired two years previously and his position had been taken over by a [Leader B].  The applicant told her story to [Leader B] and lodged a complaint against [Leader A] but heard nothing of it. 

   g.The applicant went to see [Leader A], however he denied any involvement with the applicant’s family’s land.  The meeting became ‘heated’ and the applicant claims that [Leader A] threatened her safety and the lives of her ‘loved ones’.

   h.The applicant and her mother then went to the local police station; however, they could furnish no proof of their allegations and were told that there was nothing the police could do.

   i.The applicant stated that she did not give up and began to post ‘accusation posters’ around the Village Head’s office.  She claims that ‘very soon’ she was apprehended and put in a detention room inside the local police station for 10 days.  She was not allowed visitors and had limited food and water.  Before being release she was warned by the officer in charge that if she continued her protests or complaints she would ‘need to be careful’.

   j.The applicant claims that, although she had ‘no concrete evidence’ she continued to write to ‘senior government levels’ in her province.  She claims that in March of 2017 she received a phone call from an identified person who warned her to stop her activities or ‘something’ might happen to her or her loved ones.

   k.The applicant claims that on [a day in] March 2017 her husband was admitted to hospital for ‘observation’ after a brick ‘narrowly missed his head’.  The applicant perceived this as a ‘warning’ to her.

   l.She states that two days later, she was pushed in the back while standing, waiting at a traffic intersection, and was forced out onto the road.  The traffic had stopped by a change in the lights and the applicant was not hurt.  The applicant could not find the person who pushed her, but also perceived this incident as a ‘warning’ to her.

   m.The applicant states that as a result of these events she became concerned for her and her family’s safety and she decided to flee China.  She claims to have met a number of other farmers who had similar experiences with [Leader A] and she believes that [Leader A] was part of a ‘syndicate’ who would be motivated to ‘eliminate’ her should she return to China.

4. The applicant attended an interview with the delegate of the Minister.  Where relevant, the applicant’s evidence to the delegate is referred to below.

5. The delegate refused to grant the visa on 30 November 2017 on the basis that the applicant’s claims were not credible.  The delegate also did not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that she will suffer significant harm.

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

   Application for review

7. The applicant was represented in relation to the review by her registered migration agent.

8. The applicant appeared before the Tribunal on 17 December 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant’s representative did not attend the hearing.

9. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The relevant law

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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.

    Analysis, findings and reasons

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

17. The applicant’s evidence to the Tribunal followed broadly the written statement she made in support of her protection visa application.[1] 

    [1] See Department File, folios 7 – 10.

18. The applicant stated that her purpose in travelling to Australia was to seek refugee status.  She stated that she travelled to Australia on a Tourist visa in order to make an application for a protection visa once she arrived onshore.[2]  She stated that her husband and [child] are resident in China, as are her parents; she has no family in Australia and works here as a casually employed [occupation 1].  The applicant stated that she first obtained a passport in October 2016 in order to travel to [Country 1] and [Country 2] to obtain and send milk back to her child.  She claims to have learned of the prospect of applying for refugee status in Australia from reading a newspaper in [Country 2].

    [2] The Tribunal notes that this account is consistent with the timing of the applicant’s arrival onshore ([in] May 2017) and the making of her protection visa application (26 July 2017).

19. The applicant stated that she fears returning to China because she could be ‘prosecuted’ because ‘they took the land from [her] mother’ and that if she seeks to dispute or challenge that, the village leader will arrest her and ‘put [her] in gaol’.

20. The Tribunal then invited the applicant to explain the circumstances of the land dispute.  The applicant stated that her family came from the countryside and were allocated a piece of land in [year].  When pressed, the applicant stated that the land was approximately [amount]MU[3] in size.  The applicant stated that at that time the land was owned by the government but that it was allocated to the applicant’s family for farming purposes.  Later, she stated, her family moved to the city and obtained a ‘city household’.  They have been a city household for ‘many years’.

    [3] 1MU is equal to approximately 666.67 square metres.

21. The applicant’s evidence is that in or around 2007 government policy on land ownership changed, and holders of farming land were permitted to purchase that land from the government at a discount.  She stated that in 2012 her parents resolved to take advantage of this policy change and to purchase their [amount]MU of allocated farming land.  She stated that upon inquiry, however, the family discovered that the land had already had a ‘block of buildings’ erected on it and that that it was now held in the village’s leader’s name.

22. The applicant stated that she first raised objections in connection with the land’s ownership with the village leader in 2015.  She stated that she and her parents attended a meeting with the village leader and his wife.  She stated that she produced the land use certificate held by her family, but that the village leader ‘denied it’.  She stated that she told the village leader that she would report him to the police, to which he responded, ‘you can do whatever you like’.

23. The applicant stated that she raised her objections with the police in May of 2015, however the police stated to the effect that the land was under the village leader’s name and that the applicant should raise her objections with the relevant ‘government authorities’.  The applicant stated that she did so, but that the authorities could not find the original land use certificate.

24. The applicant stated that the village leadership changed in 2016 and she sought to raise her objections with the new village leader.  Following her attempts to raise the issue the applicant stated that she was arrested in January 2017 and held in detention for ten days.  When pressed by the Tribunal the applicant stated that she was not told why she was arrested and that she was not questioned or interrogated.  She stated that she had little food or water.  When further pressed she stated that the new village leader had called the police in her presence, but that she thought they were caleld as part of a mediation process.

25. After her release the applicant states that she received anonymous ‘threatening phone calls’.  When pressed the applicant stated that the caller told her not to come back to the village, that ‘the land doesn’t belong to you’, and that ‘if you don’t listen to what I say, something will happen to you’.  At the hearing the applicant maintained generalised claims that the village leadership was corrupt and had engaged in criminal activity in respect of her family’s land.

26. The applicant then related two incidents that she claims were connected to the land dispute:

    a.firstly, in March 2017 her husband was walking near a construction site and was struck and injured by a brick; and

    b.secondly, when the applicant was waiting to cross a street at a set of traffic lights she was ‘pushed in the back’ out into the street and she ‘nearly died’.

27. The applicant also claimed to have received threatening letters in connection with the land dispute, however she did not produce these to the Tribunal.

28. The Tribunal now assesses whether, on the basis of the findings of fact above, the applicant’s past and future conduct if he returns to China, and relevant country information, he has a well-founded fear of persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future.

29. The applicant’s claims regarding her family’s dispute over land ownership with the authorities in China are broadly consistent with country information which indicates that protests and petitions related to land seizures by officials and the conduct of developers were and remain common there.[4]   DFAT reports that, in practice, the treatment of individual cases of petitioners for compensation depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise.  The applicant’s description of the behaviour of the local officials in connection with her family’s land is consistent with DFAT’s analysis.

    [4] Department of Foreign Affairs and Trade (DFAT), Country Information Report on the People’s Republic of China, published on 3 October 2019, paras [3.134] – [3.137]

30. Accordingly, the Tribunal is prepared to accept that:

    a.In or around [year] the applicant’s family were allocated approximately [amount]MU of faming land, and that the family farmed the land until they moved to ‘the city’ to become workers there.

    b.In or around 2007 the government policy changed, and holders of farming land, including the applicant’s parents, could apply to purchase their landholding at a reduced price.

    c.In or around 2012 the applicant’s parents resolved to purchase their farmland from the government however, after inquiries, they discovered that the land had been transferred to their village leaders’ name and had been developed.

    d.In or around 2015 the applicant, on behalf of her parents, raised objections with the village leader, police and relevant government authorities but were unable to successfully resolve their case.

    e.In or around 2016 the applicant, on behalf of her parents, raised their objections with the new village leader but did not achieve a satisfactory resolution to their claims.

31. However, the Tribunal does not consider the following claims to be made out for the reasons stated:

    a.The applicant’s account of having been arrested by police was vague at the hearing and inconsistent with her written statement.  In particular, in her written statement the applicant claims that her detention ended with a specific warning that she that if she continued her actions she would ‘need to be careful’; however her oral account of the event was that she was not told why she was arrested and that she was not questioned or interrogated; merely that she had ‘little food or water’.  Overall, the Tribunal did not find the applicant’s oral account of this incident persuasive and the material inconsistency in the applicant’s evidence regarding the warning she allegedly received causes the Tribunal to doubt it veracity.

    b.Although the Tribunal is prepared to accept that the applicant believes that her husband’s injury from being hit by a brick near a construction site and her having been ‘pushed in the back’ at a set of traffic lights are connected with her family’s land dispute, there is no evidence before the Tribunal to substantiate this belief and any fear that the applicant claims to hold on this basis is mere conjecture or surmise on her part.[5]  Accordingly, the Tribunal does not accept the applicant’s claimed fears on account of these events to be well founded.

    [5] MIEA v Guo (1997) 191 CLR 559 at 572

32. That Tribunal notes that the applicant was able to obtain all necessary government permissions to leave China in 2016 to travel to [Country 1] and [Country 2], and in 2017 to travel to Australia.  The Tribunal further notes that she gave no real insight into her intended future conduct if she were to return to China, emphasising instead that she wished to remain in Australia until there was a change in the village leadership at which time she might return there to pursue her family’s claim. 

33. Although the applicant claimed to have a fear of arrest and imprisonment if she were to return to China now or in the reasonably foreseeable future, the Tribunal does not consider these claims to be well founded; in particular the Tribunal does not accept the applicant’s claims to having been arrested or to having been the target of attempted violence or intimidation in the past.  The applicant provided no persuasive evidence to suggest that she is at risk of such behaviour now or in the reasonably foreseeable future. 

34. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution, any fear that she claims to hold in respect of the future being mere conjecture or surmise on her part. The Tribunal therefore finds that she does not face a real chance of serious harm amounting to persecution arising from these circumstances.

35. The applicant’s claims arguably relate to issues such as local corruption, land confiscations, and perceived shortcomings in China’s criminal justice system and the rule of law. These reflect broad socio-economic, political and legal conditions in China of general application.  The Tribunal finds that the applicant does not have a well-founded fear of persecution arising from such general conditions.  It does not accept on the available material that she faces a real chance of serious harm; or that the essential and significant reason for any harm would be a reason set out in s.5J(1).

1. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal does not accept that she has been seriously harmed in the past or that, if she were to return to China now or in the reasonably foreseeable future, there is a real chance that she will be harmed for the reason of her race, religion, nationality, political opinion or membership of any particular social group apparent on the face of the evidence. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

2. 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) of the Act. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)-(e) of the definition of torture in s.5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the infliction of severe pain or suffering, either physical or mental, that is intentionally inflicted on a person or harm that would involve pain or suffering, intentionally inflicted, by an act or omission that could reasonably be regarded as cruel or inhuman in nature, such as to meet the definition of cruel or inhuman treatment or punishment in s.5(1). Nor is it satisfied that it has substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of degrading treatment or punishment in s.5(1) which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that it has substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

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

   Damian Creedon
   Member

   
   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …