1817985 (Refugee)

[2018] AATA 3459

1817985 (Refugee) [2018] AATA 3459 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1817985

COUNTRY OF REFERENCE:                  India

MEMBER:Nathan Goetz

DATE:2 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2018 at 4:45pm

CATCHWORDS

Refugee – Protection Visa – India – Unlawful non-citizen in Australia – Victim of assault – Property dispute – Delay in lodging protection visa application – Inconsistent evidence – Credibility concerns – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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

2. On 23 September 2014, the applicant arrived in Australia on a student visa. On 15 August 2016, student visa was cancelled and a day later he became an unlawful non-citizen.

3. On 13 January 2018, the applicant was located by [Police] and he was detained as an unlawful non-citizen and was transferred into immigration detention.

4. On 25 May 2018, the applicant lodged a protection visa application with the department. On 29 May 2018, the applicant’s associated bridging visa was refused by the department. The applicant applied for a review of the bridging visa refusal with the Tribunal and this was subsequently refused on 7 June 2018 in case [number].

5. On 14 June 2018, the applicant’s protection visa application was refused by the delegate. On 19 June 2018 the applicant applied to the Tribunal for a review of this decision and this is the application the Tribunal is now dealing with. The applicant provided the Tribunal with a copy of the delegate decision.

6. The applicant subsequently lodged a new bridging visa application. On 17 July 2018, a delegate granted the applicant a bridging visa and the applicant was released from immigration detention.

7. On 27 July 2018 the applicant appeared at the Tribunal give evidence in support of his protection visa application. He was assisted by a Punjabi interpreter.

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

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

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

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

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

    Mandatory considerations

13. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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

    Written Protection Visa Application

14. The applicant claims that he is [name] who was born on [date of birth] in [Punjab], India and that he is a citizen of India. He is a Sikh. Prior to coming to Australia, he resided at [Address 1] in India. He departed India for Australia on 22 September 2014 on an India passport on a student visa to study in Australia.

15. He claims that he left India because of a property dispute between his father  [Mr A] and [Mr B]. On 29 January 2009, the applicant’s father bought a property from [Mr B] and both parties agreed to register the sale. On 15 June 2009, [Mr B] asked for an extension to the registration time, and both parties agreed to delay this until 15 September 2011. On the day of registration of the sale, [Mr B] refused to attend this registration. [Mr A] lodged a case against [Mr B] and after a couple of court hearings, [Mr B] started to threaten them and attacked both the applicant and his father. The applicant claimed that it was for this reason that his parents sent him overseas and he got his visa to do so on 18 September 2014.

16. The applicant claimed that if he were to return to India, he feared for his life and that [Mr B] could kill him or brutally harm him. The applicant claimed that he would need to live in hiding and not be able to do many things that men his age are able to do openly.

17. The applicant stated that in July 2014 he got multiple injuries with bleeding from [a certain body part] and got stitches to [other body parts].   He also received injuries [to other body parts]. He also claimed that he had experienced harm in 2013 but that time the injuries were minor.

18. The applicant had sought help multiple times from police. He said that the first time he asked for help was when [Mr B] attacked his father and the applicant in 2013. He claimed that he went to the police station but the police did not help them. Police told them that the police had political pressure and the police threatened them to withdraw the case or the police would put ‘wrong’ charges on the applicant and his father.

19. The applicant claimed that he tried to move to his maternal uncle’s place in another part of Punjab to seek safety. He wrote that he felt secure there for a couple of weeks but that [Mr B] started to mentally torture his parents and started searching for the applicant. [Mr B] used political links to find the applicant and came to his uncle’s house. He wrote that they were scared and that he had no one else in another area to look after him.

20. The applicant wrote that if he were to return to India, [Mr B] would kill him or brutally harm him. He wrote that [Mr B] can misuse police power to torture him and get a false allegation on him to spoil his life, and that the applicant will live in fear of his life. The applicant does not think that Indian authorities will be able to protect him because Indian police are prone to corruption and [Mr B] has political connections which he has used previously to quash the police case that the applicant and his father had lodged against [Mr B]. The applicant claimed that he was sure that [Mr B] could find him if he returned to India and relocated to another part of the country.

21. In support of his claims, the applicant the following documents:

22. A medical report [dated] 23 January 2018. This report stated that the applicant’s father [Mr A] had been under the doctor’s treatment from 7 November 2013 to 12 November 2013. It noted his father’s injuries, treatment and discharge from the hospital.

23. A medical report [dated] 14 February 2018. This report stated that the applicant had been under the doctor’s treatment from 19 April 2014 to 23 April 2014. It noted multiple injuries, treatment and discharge from the hospital.

24. An affidavit of [Mr A] dated 30 April 2018 explaining the property dispute, and the actions of [Mr B] against him as well as the applicant.

25. Court documents which show the that [Mr A] issued proceedings in the Court [against] [Mr B] regarding the property dispute.

    Findings and Reasons

26. The issue in this case is whether the applicant is a refugee or whether he is a person entitled to complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who holds a protection visa.

27. The Tribunal is satisfied as to the identity of the applicant, that he is a citizen of India and that the country of reference for this application is India. However, for the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Living arrangements while in India

28. At the start of the Tribunal hearing, the applicant told the Tribunal that he lived at his parents address at [Address 1] in the [Punjab] State in India. He told the Tribunal that this was his family home and that his parents had always lived at that address. He told the Tribunal that he lived at that address before he came to Australia. This evidence was consistent with his written protection visa application, where the applicant wrote that this was his only residential address in India.

29. Over the course of the hearing, the applicant then changed his evidence about his living arrangements. He told the Tribunal that after he was assaulted by [Mr B] in 2014, he stayed at his family home for one or two days before he moved to his maternal uncle’s house which was in Jalandhar. He stayed there for about one and a half months, but moved again when [Mr B] found him there. He then relocated to Chandigrah and lived for one week in a hostel, before moving again to live with a friend of his mother’s. When the Tribunal brought this inconsistency to the applicant’s attention, he stated that his family home was his permanent address and he was not sure whether to put down his other addresses or not. He stated that he lived in different places during that time, and said that if he had gone for a holiday he would not have put down that address either.

30. The Tribunal was concerned by the evidence regarding the applicant’s living arrangements in India. It appeared to the Tribunal that the applicant was willing to change his evidence to suit his case, and had invented living in different locations to add support to his claims that he had been harmed in India and needed to relocate to avoid that harm. The Tribunal does not accept the applicant’s explanations that he did not put down those other addresses because it was not his permanent place of residence. If his oral evidence were to be believed, he was clearly living at other places and not living at the family home. This suggested to the Tribunal that the applicant did not relocate to other places as claimed, which, in the Tribunal’s view, would undermine the credibility of his claims.

    Inconsistent evidence above previous harm and dealings with police

31. During the Tribunal hearing, the applicant gave evidence about his assault by [Mr B]. He told the Tribunal that this assault happened in either March or April 2014. He told the Tribunal that he had never been assaulted by [Mr B] previously, and had not been assaulted by [Mr B] subsequently. This was in conflict with his written application, where the applicant said that he had been assaulted in July 2014 by [Mr B] and in 2013 where he received minor injuries.

32. The Tribunal asked the applicant to explain this inconsistency. He told the Tribunal that the assault in 2014 happened during the summer and when he was completing the protection visa application he was not sure of the date and just ‘put the date there’. When the Tribunal put to the applicant that he had claimed in his protection visa application that he received minor injuries in an assault in 2013, he told the Tribunal that ‘an Indian boy’ in the detention centre had completed the form for him and he was not sure ‘how that happened’.

33. The applicant told the Tribunal that he had never gone to the police station in relation to his assault and that he only knew about the attempt to lodge a police report was through what his mother and father told him. In relation to the 2013 assault of his father, he told the Tribunal that it was his mother and his uncle who attempted to lodge a police report because his father was in hospital. He found out about this subsequently. He never spoke about this with his parents and his knowledge of this was based on what he heard when the applicant came back home from school one day. He said his parents were talking to each other. He said that he heard his mother telling his father that the police would not take the police report. The applicant was listening to this and was told by his parents that they did not want to get their son involved with this so he went away from then room. He said he did not discuss this further with his mother and father. In relation to the 2014 assault, the applicant told the Tribunal that his father went and reported the matter to the police station. He said he did not talk about this much with his father but his father told him that the police received a phone call and said that they could not lodge the report.

34. The Tribunal put to the applicant that his evidence to the Tribunal about the dealings with police was inconsistent with his oral evidence. His written application said after [Mr B] attacked both the applicant and his father in 2013 and they reported the matter to police, police told him and his father that police had political pressure and also threatened them to take the case back or the police would put ‘wrong charges’ against them. The applicant put this inconsistency down to the person filling out the form putting down wrong information.

35. The Tribunal was concerned about the inconsistencies regarding this evidence. The applicant had signed his written protection visa application declaring that its contents were true. It is incredulous to believe that a person who was assisting the applicant would invent the 2013 assault claim, or would invent the threats made by the police to the applicant and his father. The fact that the applicant changed the date of his 2014 assault between his written and oral evidence and that he simply picked a date in his written application suggests that the applicant has a flexible approach to his evidence. The stark contrast between the applicant’s written and oral evidence suggested to the Tribunal that the applicant had a flexible approach to the truth regarding his claims which, in the Tribunal’s view, would further undermine the credibility of the claims.

    Delay in lodging protection visa application

36. The applicant’s evidence was that he left India and came to Australia because he feared harm. Yet, the applicant had been in Australia since 23 September 2014 and lodged his protection visa application on 24 May 2018, which is a delay of over three and a half years since his arrival.

37. Regarding his student visa, the applicant initially told the Tribunal that his plan was to complete his studies and return to India, but later changed his evidence to say that his plan was to return to India once the property dispute case was settled. He told the Tribunal that he wants to go back to India once the court case is settled and that he was initially unsure whether he should apply for protection in Australia or not. Telling, he told the Tribunal that he never thought about putting in a protection visa application until he was in detention. The applicant also told the Tribunal he speculated that the court case would be finished by the time his student visa expired (that visa, had it not been cancelled, was to cease in April 2018), and that if the court case had not finalised by then, he would have done something to extend his visa so he could remain in Australia. The applicant contended that he thought he still had his student visa and was only made aware that he was unlawful upon interception by authorities on 13 January 2018.

38. The Tribunal was concerned by the applicant’s explanation for his delay in apply for a protection visa application. By his own admission, the applicant did not think about applying for a protection visa until he was put in immigration detention, which is at odds with the applicant leaving India for fear of harm. The Tribunal struggles to accept that the applicant would be content to ‘wait and see’ the outcome of the court case in India before deciding whether he could return to India or not. This suggested to the Tribunal that the applicant did not have a genuine fear of harm of returning to India and, when coupled with the Tribunal’s other concerns, would further undermine the credibility of the applicant’s claims.

    Previous statements made about return to India

39. As noted previously, the applicant had been an unlawful non-citizen in Australia from 16 August 2016 and he was intercepted by police on 13 January 2018 and subsequently detained in immigration detention. On that day, he had a compliance client interview with an officer of the Immigration Status Service in the department. In that interview, the applicant was asked whether there were any reasons why he could not return to his home country. As noted in the delegate decision which the applicant provided as part of the review, he told that officer that he could not return to India because he had a girlfriend in Australia and raised no fear of harm if he was to return there.

40. The Tribunal put to the applicant that his statement to the officer was not consistent with his claimed fear of harm. The applicant stated that when he was in the detention centre, he was ‘given an option’ about what kind of visa he could apply for, and he was told that Indians are not successful in obtaining protection visas in Australia, so he was considering applying for a ‘spouse’ visa with his girlfriend, and that is why he did not mention that he could not return to India because of the property dispute with [Mr B]. The Tribunal noted that the question asked by the officer was not about a specific visa, but asked why the applicant could not return to India.

41. The Tribunal was concerned by the applicant not raising that he would be harmed when asked by the officer why he could not be returned to India and instead stating that he could not return to India because he had a girlfriend in Australia. The Tribunal struggles to accept the applicant’s explanation that he did not raise this because he thought he would apply for a spouse visa instead. It would be reasonable to expect that the applicant would have said to the officer that he could not be returned to India because he was to be harmed there when that was, according to the applicant’s written and oral evidence, the very reason he left India. This suggests to the Tribunal that the applicant’s claims about why he cannot return to India are not credible.

    Documents provided by the applicant

1. Given the concerns that the Tribunal had regarding the applicant’s credibility, the Tribunal put to the applicant that country information (DFAT Country Information Report , India, 15 July 2015 at 5.29) indicated that document fraud is a significant industry in India and that the documents he had presented to the Tribunal (namely, the medical reports, affidavit and court case documents) may not be genuine. The applicant told the Tribunal that the documents were genuine. Given the Tribunal’s concerns about the credibility of the applicant’s evidence, and dispute the applicant’s claim that these documents are legitimate, the Tribunal has concerns about the genuineness of those documents. Consequently, the Tribunal places no weight on these documents and suspects that those documents are false and have only been created to assist the applicant with his protection claims.

   CONCLUSION

2. The cumulative concerns that the Tribunal has regarding the applicant’s evidence leave the Tribunal to determine that the applicant is not a witness of truth and to reject his claims in their entirety. The Tribunal does not accept that the applicant faces a real chance of serious harm, or faces a real risk that he will suffer significant harm, if he is returned to India.

3. If the applicant had a genuine fear of harm if he were to be returned to India, he would not have said in his compliance interview that the reason why he could not return to India was his girlfriend. He would have said that he would be harmed if he were returned there. If the applicant had a genuine fear of harm if he were to be returned to India, he would not have waited three and a half years before lodging a protection visa application. Further, the applicant would not have falsely claimed in his written application to have been assaulted in 2013 and received minor injuries, would not have given inconsistent evidence about the date of his assault in 2014, and would not have given inconsistent evidence about his living arrangements while in India. The Tribunal is satisfied that the applicant lodged a protection visa because he wanted to stay in Australia to be with his girlfriend, not because he feared harm upon his return to India.

4. Due to the concerns that the Tribunal has about the credibility of the applicant, the Tribunal does not accept that there was a property dispute between the applicant’s father and [Mr B], that there have been any court cases as a result of that property dispute, that the applicant or his father have ever been harmed by [Mr B], that the applicant or his father have been medically treated as a result of assaults, or that the applicant or his father have had any dealings with police over this matter, or that the applicant has had to relocate to various addresses in India to avoid harm from [Mr B]. The Tribunal is satisfied that these claims were invented by the applicant in a bid to remain in Australia for purposes not related to Australia’s protection obligations.

   Refugee

5. 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).

   Complementary Protection

6. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) because the Tribunal does not find the applicant to be a credible witness.

   Member of the same family unit as a person who holds a protection visa

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.

   Nathan Goetz
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …