1800447 (Refugee)

[2021] AATA 2506

1800447 (Refugee) [2021] AATA 2506 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1800447

COUNTRY OF REFERENCE:                   Turkey

MEMBER:Shahyar Roushan

DATE:9 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2021 at 2:00pm

CATCHWORDS
REFUGEE – protection visa – Turkey – political opinion – supporter of opposition politician – credibility – inconsistent claims and evidence – trip to third country not declared in application – no application for protection made there and return to home country – vague knowledge of politician and politics – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65
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 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 6 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   CLAIMS AND EVIDENCE

   Protection visa application

2. According to his Protection visa application, the applicant is a [Age]-year-old national of Turkey. He is a Sunni Muslim. He was born in Samsun Province, Turkey and resided at a single address in Samsun before coming to Australia. His parents and two brothers reside in Turkey. He has completed high school in Turkey but has provided no previous work history.

3. The applicant arrived in Australia [in] August 2013 as the holder of a [Transit visa], which expired on 11 August 2013. He lodged an application for a protection visa on 5 May 2017.

4. In response to questions in relation to his reasons for claiming protection, the applicant made the following claims:

5. He believes that the current regime in Turkey is a dictatorship. He fears persecution as a supporter of Mr Fethullah Gulen. He will be jailed without trial and ‘perish’ in a Turkish jail. It would be useless to seek help from Turkish authorities because they support the existing regime and they are not willing to protect anyone who opposes President Erdogan. He will be persecuted by law enforcement agencies and he cannot relocate to any other part of Turkey because supporters of Mr Gulen are persecuted everywhere in the country.

6. The applicant did not provide any further information or submissions to the Department in support of his visa application.

7. According to the Department’s decision record, the applicant did not attend a Protection visa interview scheduled for 5 December 2017.

8. On 6 December 2017, a delegate of the Minister refused his protection visa application. On the basis of the limited information the applicant had provided to the Department, the delegate was not satisfied that there was a real chance that the applicant would face serious harm for the reason of his claimed support for Fethullah Gulen. The delegate was also not satisfied that there was a real risk of significant harm if the applicant were to be removed to Turkey.

   Application for review

9. On 5 January 2018, the applicant applied for a review of the delegate’s decision.

10. On 12 April 2021, the applicant appointed [Mr A], Registered Migration Agent, as his representative.

11. On 24 May 2021, a Tribunal officer contacted [Mr A] to remind him that pre-hearing submissions should be received prior to the hearing in order to allow time for the Tribunal to consider the relevant information. [Mr A] informed the officer that the applicant did not intend to provide any submissions prior to the hearing. [Mr A] stated that the applicant will be making submissions at the hearing and that he did not attend the interview with the department as he did not receive the invitation.

12. The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages. Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.

    CRITERIA FOR A PROTECTION VISA

13. 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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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

19. For the following reasons, the Tribunal did not find the applicant to be a reliable and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to various inconsistencies in his evidence throughout the process, the unpersuasive nature of some key aspects of his claims and other reasons detailed below. 

20. In his Protection visa application form 866 Part C, in response to Question 80 (‘Have you travelled to any country other than Australia (including in transit) in the last 30 years?’), the applicant stated that he had travelled to [Country] for ‘tourism’ from [June] 2013 to [July] 2013. At the hearing, he told the Tribunal that he travelled to [Country] on an earlier occasion in December 2012 or January 2013, staying in that country for approximately three months.

21. The applicant was asked why he had failed to mention his first trip to [Country] in his application form. His responses to the Tribunal’s questions in this regard, as well as to a number of other questions asked of him throughout the hearing, were vague, evasive and circuitous. He responded that someone else had filled out the form for him because he did not speak English. When asked who had helped him with his application form, he said he did not know the person well. The Tribunal put to him that, according to section 11 of Part B of the form, [Mr A] had paid the application fee on his behalf and it was reasonable to assume that he had assisted him with the form. The applicant said that the he met the person who had assisted him in the mosque, and he did not know them. When it was again put to him that it appeared hat [Mr A] had provided him with assistance, he stated that he did not speak English, they filled out the form for him and he signed it. The Tribunal put to him that the form contains personal information that only he could have supplied, regardless of who had filled out the form. He repeated that he does not speak English, but the person who helped him with the form speaks Turkish. [Mr A], however, acknowledged that he had been asked by a third party to assist the applicant in connection with his Protection visa application. The Tribunal found the applicant’s responses to the Tribunal’s questions highly unreliable, unpersuasive and misleading.

22. In his application form, the applicant had stated that from ‘06/[Year]’ to ‘current’ he had ‘never worked’ and that he had resided at a single address in Australia from the date of his arrival until ‘current’. At the hearing, the applicant told the Tribunal that he had worked as [Occupation] in Turkey from a young age until his first trip to [Country]. He also told the Tribunal that he resided at various addresses in Sydney following his arrival and that he was intermittently homeless. When asked about the discrepancy in his work history, he stated that this was a misunderstanding and that he had meant to say that he had never worked in Australia. When asked why he had stated in his application form that he lived at a single address from 2013 to 2017, he was vague and evasive. When pressed, he stated that he stayed with different people and they did not provide him with addresses. As already noted, the applicant was assisted in the preparation of the form by [Mr A]. The Tribunal found the applicant’s explanations for the inconsistencies in his evidence highly unpersuasive. The applicant’s evidence casts serious doubt on the credibility of his evidence and his reliability as a witness.

23. At the hearing, the applicant was asked about the purpose of his trips to [Country]. He stated that he had travelled to [Country] because he was fearful due to events associated with Fethullah Gulen. As it was put to him at the hearing, the strong, strategic alliance which was formed in 2000s between the ruling Justice and Development Party (AKP) of President Erdogan and the Gulen Movement did not disintegrate until December 2013,[1] when pro-Gulen judges levelled corruption charges against Erdogan. Subsequently, the AKP labelled the Gulen Movement a state within a state, a parallel structure, and a terrorist organisation.[2] Between late 2013 and 2015, a toxic political environment was created and ‘a relentless witch-hunt began against Gulenists. Educational institutions, media groups, business associations, bureaucrats, judges, and intellectuals associated with the Gulen Movement have all [became] the target of a destructive political campaign.[3] This campaign peaked with the failed 2016 coup attempt, leading Erdogan to accuse the Gulen Movement of masterminding and carrying out the attempt and initiating ‘a widespread purge.’[4] According to his own evidence, the applicant had first travelled to [Country] in late 2012. When asked why he had felt fearful at that time, he stated that people were talking about it and saying that in the near future things will happen. The Tribunal did not find this explanation persuasive. The Tribunal has found no information in any of the sources consulted to suggest that there was any indication that ordinary followers or supporters of the Gulen Movement had felt threatened or were vulnerable to harm in late 2012 or early 2013.

    [1] Gönül Tol, The Clash of Former Allies: The AKP versus the Gulen Movement, The Middle East Institute, 7 March 2014, The Clash of Former Allies: The AKP versus the Gulen Movement | Middle East Institute (mei.edu).

    [2] Ömer Taşpınar, The failed coup and Turkey’s Gulenist predicament, The Brookings Institution, 9 August 2016, The failed coup and Turkey’s Gulenist predicament (brookings.edu).

    [3] Ibid.

    [4] Arslan Ayan, An Ontological Reading of Turkey’s AK Party – Gülen Movement Conflict, E-International Relations, 21 July 2019, An Ontological Reading of Turkey's AK Party – Gülen Movement Conflict (e-ir.info).

24. Indeed, despite his claimed reason for travelling to [Country], the applicant did not seek protection in that country[5] during his stay and returned to Turkey approximately two or three months later. He again travelled to [Country] in June 2013, remaining in that country for four weeks, before going back to Turkey. Once again, he did not seek protection in [Country] and returned to Turkey. When this was put to him at the hearing, he stated that ‘they’ (in [Country]) are not interested in human rights. When pressed, he said he was thinking about it, but they were ‘cold’ towards him. The Tribunal does find the applicant’s explanations persuasive and does not accept his evidence in this regard. The Tribunal does not accept that the applicant travelled to [Country] because he was fearful in Turkey.

    [5] [Country] acceded to the 1951 UN Convention Relating to the Status of Refugees on [Date 1], and to the 1967 UN Protocol Relating to the Status of Refugees on [Date 2].  In [Year], [Country] began accepting refugees for resettlement in [Country] in accordance with the UN Convention and Protocol. See [reference deleted]

25. In reaching this view, the Tribunal has taken into account the applicant’s unsatisfactory responses to the Tribunal’s questions in relation to the Gulen Movement. The applicant stated at the hearing that he had attended meetings and talks by Fethullah Gulen in Turkey three to four days a week for a period of approximately four years - from 2008 until his first trip to [Country]. However, beyond banal generalities, the applicant was unable to provide any meaningful responses to straightforward questions about the Movement. For example, when asked why he had attended these meetings or talks, he said they were ‘nice talks’ and he intended to learn ‘good things.’ When asked what he liked about what he was hearing, he said they were talking about ‘good things.’ When asked to elaborate, he said they talked about religion. When pressed again, he responded ‘they said they will do good things and open schools.’ The Tribunal also asked the applicant what he thought were the core values of the Movement. He said Gulen wanted to make a new generation by opening schools and colleges. When asked to elaborate, he said Gulen wanted to spread the religion in ‘a better way.’ Furthermore, the applicant did not know when or where in Turkey the movement had started or what was the name of the main prominent newspaper associated with the Movement in Turkey.[6]

    [6] See Mustafa Akyol, Cause or cult? What it means to be a Gulenist, Al-Monitor, 1 August 2016, and Yuksel Aslandogan, The Gulen Movement, Center for Strategic and International Studies, 17 June 2009, The Gulen Movement | Center for Strategic and International Studies (csis.org)

26. If the applicant had attended gatherings, meetings and talks on a regular basis for a period of four years, it would be reasonable to expect to him to be able to offer more information or details in relation to the Movement, its beliefs objectives, and values and why he had supported it for so long. When it was put to him at the hearing that he did not appear to know much about the Gulen Movement, he said he was very young, and he doesn’t know. The Tribunal does not accept this explanation. Nor is the Tribunal persuaded by [Mr A]’s explanation that whilst the applicant does not understand many things about the Gulen Movement, he is attracted to it because the Movement is opposed to the government. The applicant told the Tribunal that he has had no involvement or association with the Gulen Movement or any other group in Australia. The Tribunal finds the applicant’s claims regarding his association with and support for the Gulen Movement in Turkey unpersuasive and does not accept these claims.  

27. Finally, the applicant arrived in Australia [in] August 2013 on a Transit visa, which expired on 11 August 2013. However, he did not make an application for a Protection visa until 5 May 2017. When asked to explain this significant delay at the hearing, he said he was scared, but after staying here for a while, he learned more about his options. The Tribunal did not find the applicant’s response to satisfactorily address a delay of some four years in applying for a Protection visa. As already noted, the applicant is relatively educated and he had previously travelled to [Country] where, as he claimed, he had thought of seeking protection. According to his own evidence at the hearing, following his arrival, the applicant had also met a number of people from the Australian Turkish community, who had provided him with food, shelter and material assistance. It is reasonable to assume that if the applicant had made any enquiries, even tentatively, he would have been able to find out more information about his options at an earlier point. The Tribunal does not accept that he did not make any effort to seek protection or regularise his immigration status because of fear. Nor does the Tribunal accept [Mr A]’s alternative explanation at the hearing that the applicant had felt safe in Australia and thus he didn’t care about what would happen. [Mr A], nevertheless, acknowledged that it is ‘almost impossible from the point of logic’ to understand the applicant’s delay in making his Protection visa application. The Tribunal is of the view that the applicant’s delay of some four years in making a Protection visa application casts serious doubt on the credibility of his evidence and claimed fear of persecution in Turkey.

28. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. The Tribunal finds that the applicant has fabricated and concocted his claims to achieve a favourable immigration outcome. The Tribunal, therefore, does not accept that the applicant is a supporter of Fethullah Gulen or the Gulen Movement. The Tribunal does not accept that he attended meetings, gatherings or talks or that he was involved in any way with the Gulen Movement in Turkey. It follows that the Tribunal does not accept that his claims at the hearing that his name was ‘put on a list’ because he attended these meetings. The Tribunal does not accept that he was ever perceived to be a supporter of or associated with the Gulen Movement or that he will be imputed with a pro-Gulen political opinion. The Tribunal does not accept that he will be jailed without trial and ‘perish’ in a Turkish jail for that reason. The Tribunal does not accept that the applicant had travelled to [Country] for the reasons he has provided. The Tribunal does not accept that the applicant is genuinely opposed to the Turkey’s government and its President or that he would seek to express views that may be perceived to be opposed to Turkey’s government and its President. The Tribunal does not accept that he will be persecuted by law enforcement agencies or anyone else for any reason.

1. After considering all of the applicant’s claims, both individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm in Turkey for the reason of his race, religion, nationality, political opinion or membership of any particular social group. 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).

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). The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Turkey, there is a real risk that he 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 intentional infliction of severe pain or suffering, either physical or mental, 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 he 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 his life or the death penalty. The Tribunal, therefore, 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.

   Shahyar Roushan
   Senior 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.

   …