1802807 (Refugee)

[2022] AATA 942

1802807 (Refugee) [2022] AATA 942 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1802807

COUNTRY OF REFERENCE:                   China

MEMBER:Meena Sripathy

DATE:8 February 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2022 at 12:21pm

CATCHWORDS

REFUGEE – protection visa – China – fears harm in China because of the authorities –financial dispute with village leadership – applicant came to Australia to work to earn income to support his family – applicant has no subjective fear of persecution that amounts to serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIMA v Rajalingam (1993) FCR 220
Selvadurai v MIEA& Anor (1994) 34 ALD 347

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 Home Affairs on 19 January 2018 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 China, applied for the visa on 8 August 2017. The delegate refused to grant the visa on the basis that that the delegate was not satisfied that the applicant faced a real chance of serious harm for one or more reasons set out in s5J(1)(a) of the Act if returned to China in the foreseeable future and is not a refugee as defined by s5H(1), or that he faced a real risk of significant harm within the meaning of that term in s36(2A) for the purposes of the complementary protection criteria.

3. The issues in this case are whether there is a real chance, if the applicant returns to China, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm.

4. The applicant appeared before the Tribunal on 7 February 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal exercised its discretion to hold the hearing by telephone given the circumstances of restrictions imposed during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing remotely, having regard to the nature of the matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted remotely. The applicant was invited to participate in a video hearing using the MS Teams platform.  He responded to the hearing invitation by indicating he would participate by telephone. On the day of the hearing the Tribunal confirmed with the applicant his preference to proceed by telephone rather than a video hearing. The interpreter was present by telephone also and all parties confirmed that they could clearly hear each other.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. Information in the Department file indicates the applicant was born in [year] in Shijiazhuang City, Hebei Province. He married in 2011 and has two children born in [year] and [year]. He arrived in Australia [in] June 2017 on a Visitor visa, using his own passport that was issued [in] 2016 and is valid to 2026. He is educated to high school level, and indicated that he held various part time jobs prior to marriage in 2011.

13. The applicant’s made the following claims for protection in a personal statement submitted with the application:

    ·After the birth of his sons, he and his wife opened a small restaurant in [Village 1], which went well for the first few years.

    ·One day a group from the [Village 1] Village committee came to eat at the restaurant, ordered many dishes, but at the end of the meal instead of paying the director of the village committee, [Mr A], told his assistant to tell the applicant and his wife to put the bill on a tab and they would pay on a monthly basis. The applicant and his wife, although worried about this, said nothing because it was the village leaders.

    ·Over the following weeks, the group from the village committee regularly came to the restaurant, ordered a lot of food and put it on the tab in [Mr A]’s name.  No payments were made by them.  When the applicant reminded then about the unpaid bills, they asked if he was accusing them of not being able to afford their meals. [Mr A] told the applicant he would pay when he had time.

    ·Over a four month period this continued with no payments made.

    ·The failure of the village committee to pay their account caused the applicant’s profit margin to fall and his life became more difficult. When he attempted to attend the village committee office to ask for payment he was turned away.  When the group next came to his restaurant he refused to serve them until the bills were paid.

    ·This irritated [Mr A] and from this time obstacles were created for the applicant and his wife such as collusions with the Bureau of Sanitation to inspect his restaurant every month.  Having never had any previous problems with the Bureau of Sanitation in the past, the applicant and his wife were issued with 2000BMB fines each time they came and warnings that the restaurant would be closed for ‘internal rectification’.

    ·After some time the applicant was unable to tolerate the situation and he decided to report [Mr A] to the local ([District 1]) government.  He wrote down all of his experiences, collected the outstanding bills and fines and submitted them with his compliant to the local government.

    ·The local government and village committee colluded on bribery and corruption issues and no action was taken on the complaint.

    ·Knowing that the applicant had reported him to the local government. [Mr A] arranged for different people to eat at the restaurant and make complaints about the food and refuse to pay.  The fines from the Bureau of Sanitation also became heavier and heavier. The applicant and his wife were unable to make any profit and unable to keep the restaurant business afloat.

    ·The applicant could not bear having no legal rights, no place to appeal and being oppressed.  He was told by friends that Australia was a place that offered protection from oppression and applied ot come here.  He seeks protection so that he does not have to return to China and face further oppression from the village committee director.

14. No supporting evidence was provided with the protection application beyond his identity documents, written statement and details in his application form.

15. On 21 December 2017 the applicant was invited to attend an interview with the Department on 18 January 2018 to provide further information and discuss his protection claims but he failed to attend.

16. The delegate refused the application on the basis of the material provided in the application and was unable to be satisfied that the applicant operated a restaurant as claimed or had a financial dispute with his village leadership or reported the village leadership to a higher administrative level of government for corruption as claimed. The delegate was not therefore satisfied that he faced harm of any kind for such a reason on return to China.  

    Evidence before the Tribunal – 7 February 2022

17. At the outset of the hearing the applicant informed the Tribunal that the application form was completed by a previous agent who he is no longer using and that he was unaware of the contents of the application.  He stated that he found this agent online and was unsure of the person’s full name.  When asked what information he provided to the agent to prepare the application, the applicant said he was only asked to provide details about his family members and nothing else.  He did not provide any information about his circumstances in China prior to coming to Australia.  He does not know the contents of the personal statement submitted with the application. When asked about why he did not attend the interview with the Department officer he was invited to in January 2018, he said he was told by the agent he could choose not to attend and so he did not attend.

18. The applicant provided the following evidence about his background and circumstances to the Tribunal.  He is presently living in [Suburb 1] and has been at this address on and off since his arrival in Australia.  He works in the construction industry.  He sends money to his family in China every 2-3 months.

19. His family in China comprises his wife and two sons, born in [year] and [year].  He also has parents and a younger sister.  His wife, sons and parents live together in a family property that was previously owned by his parents and is now in his name.  His sister married and moved out, in the same local area, around 2013 or 2014.  The applicant confirmed the address of his family property which is the same as the address stated in the application, with the exception of the house number. He confirmed that he lived at this address with his family prior to Australia. Neither his wife nor his parents are employed.  There is some farm land on the property which they cultivate and he sends money home to support them.

20. Prior to coming to Australia the applicant said he owned a van and operated a transport business. He did this for about 4 years.  He sold the van before coming to Australia. He had no other jobs.  His is educated to high school level.  He had never travelled prior to coming to Australia.  The applicant confirmed that he applied for his passport in person and had no issues or problems obtaining it.  He also had no issues or problems departing the country, and he left with a valid visa.

21. The Tribunal asked the applicant why he made this application and whether he had any problems in China that caused him to depart.  He said he made the application because he wanted to stay in Australia to earn income.  He could not earn sufficient income in China to support his family.  He came to Australia to work to earn income to support his family.

22. The Tribunal asked if he had any fears of returning to China.  He said no one is threatening him there. In the past he was sometimes unfairly fined when operating his van business. The fines were imposed by the Roads Administration authority, or traffic police or city ranger officers.  He said he was fined often and he found it difficult to earn enough money because of this.  When asked why was fined he said that it is the usual practice of the officials to do that. The Tribunal asked if he believed he was singled out in being fined, and for what reason.  He said there was no particular reason for the fine and he did not think he was singled out. He doesn’t know if others experienced it also, but it is possible. It was just what they did and it wasn’t targeted at him personally.

23. The Tribunal asked if apart from this he had any other problems in China.  He said after his second son was born he had to pay a fine to get him registered.  He was threatened with arrest if he did not pay the fine.  He paid the fine and obtained a hukou for his son.  Both his sons are registered and there is no outstanding fine owed. 

24. The Tribunal asked the applicant if there is any reason he fears return to China now. He said his concern is only financial. He is concerned that he will not be able to support his family and they would not be able to live the life they now live. 

25. The Tribunal confirmed with the applicant whether he is aware of the contents of the personal statement lodged with the application. He stated he does not know the contents. When the contents were put to him, he confirmed that the information contained in it is not correct. He never operated a restaurant with his wife.  He never experienced issues with the village committee.  He never lodged any complaint in that context.  He told the Tribunal he does not rely on this statement as it contains incorrect information.

26. The Tribunal put to the applicant, in light of his evidence at this hearing, he does not appear to have a subjective fear of harm of any kind for any reason upon return and therefore does not appear to meet the criteria for this visa.  He agreed with this and made no further comment. 

    FINDINGS AND REASONS

    Nationality

27. On the basis of his Chinese passport, the Tribunal accepts the applicant is a national of China and considers China is the country of nationality and the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims

28. When assessing claims made by an applicant the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true. (See MIMA v Rajalingam (1993) FCR 220) However it is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. (see Selvadurai v MIEA& Anor (1994) 34 ALD 347 at 348).

29. The applicant acknowledged before the Tribunal at the outset that his application was completed by an agent and he was unaware of the content of the information provided in the application form lodged on his behalf.  He provided oral evidence to the Tribunal at hearing of his circumstances in China prior to coming to Australia which was totally different to the information provided in the claims made in the application.  He told the Tribunal the claims made in the application were incorrect and he disavowed any reliance on them.

30. The applicant was candid and open in his evidence to the Tribunal at hearing regarding the circumstances of making the present application and its contents. On the basis of his frank and candid evidence, the Tribunal is prepared to accept the evidence he gave at hearing about his true background and circumstances.  It accepts that he is a married man from Shijiazhuang, Hebei in China with a wife and two sons. It accepts his wife, children and parents live in a property he owns and he has been providing financial support to them since coming to Australia. The Tribunal accepts that prior to coming to Australia he operated a van transport business. It accepts his claim that he had difficulties making sufficient income from the business to support the family, partly due to fines that he described as being unfairly imposed on him by local authorities.  When questioned further about this, he made no claim that he was specifically singled out for the fines for any particular reason, just that this is what the officials did.  He made no claims about complaining or protesting about this issue of the fines.  He said he left China and came to Australia to earn a better income to support his family.

31. Having considered the applicant’s claims, the Tribunal is prepared to accept as plausible and credible that local officials may have been over zealous in the exercise of their authority and it is possible that imposition of fines were a source of additional income for the officers. The Tribunal notes independent information indicates China ranks as 78 out of 180 in Transparency International’s 2020 Corruption Perceptions Index[1] and accepts there is scope for unaccountable practices at the local level of provincial government.  Given this, despite the absence of any documentary evidence about fines imposed on him, the Tribunal is prepared to accept the applicant experienced difficulties sustaining a livelihood from his transport business due to excessive fines imposed against him. He has not claimed, and there is no basis to find that he was singled out to be fined for any reason. Nor has he claimed that he protested or complained about this matter nor experienced any adverse consequences in that context.  His sole claim was that he found it difficult because of the regular fines imposed on him, to earn a sufficient livelihood to support his family.

    [1] DFAT Country Report on China December 2021, p10

1. He came to Australia to earn enough money to support his family. The applicant told the Tribunal that his main concern about returning to China is that he would not be able to support his family adequately. He has no other fear of harm upon return. 

2. Having considered the applicant’s claims and evidence the Tribunal is not satisfied that he faces a real chance of serious harm upon return to China in the reasonably foreseeable future.  The Tribunal has considered the applicant’s concern that he may not be able to adequately support his family financially upon return.  He has not specified any reason why he would be prevented from or denied the opportunity to earn an income to support his family.  He was a self employed driver in the past in China.  In Australia he has worked in the construction industry. On his own evidence, the applicant has a family property and land that the family has been cultivating. There is no information before the Tribunal to support a finding that he would be denied the opportunity, or otherwise be unable, to work for any of the specified reasons in s5J(1). 

3. The Tribunal finds the applicant has no subjective fear of persecution that amounts to serious harm within the meaning of that term in s5J(5).  He has not suffered serious harm for any of the specified reasons in the past, and has made no claim to fears such harm in future. In the absence of a subjective fear on his part there is no need to consider whether there is an objective basis to that fear.  The Tribunal is not satisfied, having considered the applicant’s claims individually and cumulatively, that he faces a real chance of serious harm for any reason specified in s5(j)(1)(a)

4. 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).

5. 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). Having regard to the findings made above regarding the applicant’s circumstances and past experiences in China, the Tribunal is not satisfied that there is a real risk he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or that he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if he is returned to China. Specifically, the Tribunal has considered the applicant’s concern that he will not be able to financially support his family’s daily living needs.  While it accepts that he may have been able to earn more money in Australia than he can in China, it does not accept that he would be unable to earn any income there.  To the extent that he may face some financial hardship upon return, the Tribunal finds that financial hardship does not constitute ‘significant harm’ for the purposes of this criteria and therefore, while sympathetic to his concerns about his capacity to adequately support his family upon return, it is not satisfied there are substantial grounds for believing that there is a real risk he will suffer significant harm for this reason, if he is returned to China. 

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

   DECISION

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

   Meena Sripathy
   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.

   …