1829174 (Refugee)

[2024] AATA 3942

1829174 (Refugee) [2024] AATA 3942 (26 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1829174

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Kylie Allen

DATE:26 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2024 at 9:23am

CATCHWORDS
REFUGEE – protection visa – Indonesia – race – Chinese ethnicity – access to health care – religion – atheist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 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 28 September 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 Indonesia, applied for the visa on 25 August 2017. The delegate refused to grant the visa on the basis that the applicant was not owed protection.

3. The applicant appeared before the Tribunal on 23 May 2024 to give evidence and present arguments in relation to his claims. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   EVIDENCE BEFORE THE TRIBUNAL

   Mandatory considerations

4. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

5. The Tribunal has also taken into account material provided by the applicant to the Department and the Tribunal as well as material provided by the Department to the Tribunal. The key information is summarised below.

   Protection visa application

6. On 25 August 2017, the applicant applied for a protection visa. The applicant’s claims included the following:

   ·     He was born in [year] in Indonesia to an Indonesian Chinese family.

   ·     In May 1998, serious riots and violence occurred against local Chinese ethnic groups in Jakarta. His family were affected by the tragedy.

   ·     He has spared no effort in lodging his appeal to the government for justice and compensation however all his work was in vain. He was harassed by police and government officials to be quiet and he had received numerous warnings and threats.

   ·     As a minority, he was discriminated in career development and freedom of speech.

   Protection visa interview

7. On 25 September 2018, the applicant attended a protection visa interview with the Department to discuss his claims. The delegate noted at interview that the applicant was unfamiliar with the claims made in his protection visa application and he indicated that some of what he had claimed was not true.

8. The applicant made new claims during the protection visa interview which included the following:

   ·     His main reason for making an application for protection was his ailing health. He has been hospitalised on several occasions in Australia. He produced medical reports from the [Hospital 1] of admittance and treatment in 2018 relating to a large gastric ulcer and a hernia. He claims that treatment in Indonesia would not be as good as that provided in Australia and he would be unable to afford treatment in Indonesia.

   ·     He also claims that he does not feel safe being an Indonesian of Chinese ethnicity in Jakarta due to corruption and crime. He reiterated the violence that occurred against ethnic Chinese people in the May 1998 riots which led to his family fleeing Jakarta and moving to Singkawang.

   ·     He also claims to have experienced employment discrimination for this reason and being called ‘China’ (Chinese) in a derogative manner. He fears he will not be promoted beyond being a subordinate.

9. On 28 September 2018, the delegate made a decision to refuse the applicant’s application for a protection visa.

   Application to Tribunal

10. On 5 October 2018, the applicant lodged an application for a review of the decision with the Tribunal.

    Hearing

11. On 23 May 2024, the applicant attended a hearing before the Tribunal. At the hearing, the applicant confirmed that the claims made in his protection visa application were not true. When he came to Australia he was planning to do some study and his friend told him to apply for protection as his visa was expiring. He did this to give himself time to save for the student visa. He said his friend gave him bad advice and he needed time to get migration advice. The applicant was granted a week to obtain advice. He later sought an extension of a further two weeks which was granted. No additional information has been forthcoming.

12. The applicant was asked about the claims he made in his protection visa interview that he is seeking access to health care in Australia. He explained that he has had treatment and his health is good now. He does not require further treatment. He said that he was not never refused medical treatment in Indonesia and that he would not be refused treatment on his return. He did say treatment is more expensive in Indonesia but he did not say he could not afford healthcare.

13. The applicant was asked if there was anything else he wanted to claim. He said that he is an atheist, that he was required to choose a religion for his identity card and that he cannot tell people in Indonesia that he is an atheist.

14. Where relevant, the applicant’s oral evidence at the hearing is referred to in my analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Refugee assessment

15. Section 5H(1) of the Act provides that a person is a refugee if, in a case where the person has a nationality, he or she 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 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.

16. Under s.5J of the Act ‘well-founded fear of persecution’ involves a number of components  which include that:

    ·     the person fears persecution and there is a real chance that the person would be persecuted

    ·     the real chance of persecution relates to all areas of the receiving country

    ·     the persecution involves serious harm and systematic and discriminatory conduct

    ·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a particular social group or political opinion

    ·     the person does not have a well-founded fear of persecution if effective protection measures are available to the person, and

    ·     the person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour, other than certain types of modification.

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

    Nationality and identity

18. The applicant claims to have been born in Indonesia. At hearing he stated that he was born in Singkawang but moved to Jakarta as a young baby. His parents have passed away but he has a number of siblings living in both Jakarta and Singkawang. He completed high school in Jakarta and then worked in hospitality. He also started a small business for three years but closed it as it was not profitable. Between 2016 and 2017 he had a number of holidays and short trips to [Country 1], [Country 2] and [Country 3]. He had no problem leaving for Australia in 2017. He said that he did not feel comfortable in Indonesia and he does not have any religion. He chose Australia because he likes the lifestyle and it is safe. I accept that the applicant is an Indonesian national and that it would be likely that he would return to Jakarta if he were returned to Indonesia.

19. The applicant claimed in his protection visa application that he is an Indonesian with Chinese ethnicity. DFAT reports[1] that successive waves of immigration to Indonesia from China have resulted in well-established ethnically Chinese Indonesian communities throughout the country. Many Chinese Indonesians can trace their history in Indonesia back many generations, may no longer identify as Chinese, and may not speak a Chinese language. Most Chinese Indonesians belong to a religious minority, either Buddhism or a Christian denomination. Indonesians of Chinese descent comprise approximately 1.2 per cent of the total population. The Tribunal accepts the applicant’s claim that he is of Chinese descent.

    Protection claims

    [1] DFAT, “DFAT Country Information Report Indonesia”, 24 July 2023

20. Initially, in his protection visa application, the applicant claimed to have been a political activist protesting against the treatment of Chinese Indonesians in the wake of the 1998 violence. At his protection visa interview and at hearing he resiled from this claim. He said it was not true. In his protection visa interview he said that faced discrimination in employment and harassment on the basis of his Chinese ethnicity. At hearing he resiled from this claim and he described a long period of employment in Jakarta after he finished school and before he started travelling in 2016 and 2017. I have considered whether the applicant would face a real chance of serious harm on his return to Indonesia on the basis of his ethnicity. DFAT reports that since 1998 successive governments have removed official policy discriminating against ethnic Chinese Indonesians. The government promotes racial tolerance, and legislation prohibiting racial discrimination and vilification has been in force since 2008. Chinese New Year is a national public holiday, Confucianism is an officially recognised religion, Chinese-language newspapers are published, and there are no barriers to Chinese cultural celebrations or education.

21. DFAT states that low-level ethnic discrimination, like stereotypes and the use of racist slurs, occurs in Indonesia and that non-Javanese are worse affected, but ethnic chauvinism occurs among members of all ethnic groups. DFAT states that Chinese Indonesians experience societal discrimination in the form of negative stereotypes that portray them as greedy and additionally as criminals or as being associated with China and its policies. In DFAT’s assessment, risk of societal discrimination against Chinese Indonesians depends on individual circumstances. Those with wealth are less affected and better able to protect themselves. Many Chinese Indonesians work in family businesses or within their own ethnic community, which reduces the chances of discrimination at work. Those without such networks or wealth would be more at risk of discrimination, but that applies to all Indonesians, not just Chinese Indonesians. Some jealousy of perceived wealth can lead to threats and some Chinese Indonesians keep a low profile as a result. Anti-minority sentiment is also heightened during election campaigns. DFAT states that violence has occurred in the past but is not an everyday experience for Chinese Indonesians.

22. Overall, DFAT assesses that Chinese Indonesians currently face a low risk of societal violence and a moderate risk of low-level societal discrimination. DFAT is not aware of official discrimination against Chinese Indonesians. At hearing the applicant this information was raised with the applicant and confirmed that he did not fear harm on his return to Indonesia on the basis of his ethnicity either from violence, discrimination or for any other reason. He reaffirmed his statement that these claims made in his protection visa application and at interview were not true. I am satisfied that the applicant does not fear harm on the basis of his ethnicity.

23. In his protection visa interview the applicant raised the availability of healthcare as the reason he was seeking protection, noting that in 2018 he had undergone treatment for a hernia and a gastric ulcer. At hearing he said that he no longer maintained that claim, that his health was good, that he was not requiring treatment and that he had never been refused access to doctors or hospitals in Indonesia. I have had regard to country information from DFAT which states that Article 28H of the Constitution guarantees citizens the right to obtain medical care, while Article 34 obliges the state to provide medical and public service facilities. Responsibility for health service delivery in Indonesia has been devolved to the district level since the early 2000s, and health services vary in quality and availability between districts. In January 2014, Indonesia began the implementation of a National Health Insurance Scheme (JKN), Indonesia’s universal healthcare system. DFAT understands that most of the population is now covered by the JKN, with citizens and those living in the country for more than six months required to register for the scheme. Those enrolled must pay premiums, which may be subsidised for the poor. While JKN is available to most, there are still several million Indonesians, including those with disabilities and complex heath needs, who do not have access to the scheme.

24. There is a gap in service provision and quality between urban and rural areas, and a mix of private and public health facilities. While most Indonesians have access to healthcare of sorts, this may not be access to a doctor or a hospital, but rather to a health worker of some type (e.g., a nurse or a health educator). Access could be in a hospital or possibly in a healthcare centre without many facilities. DFAT assesses that it is difficult to give an overall assessment of healthcare availability and quality, which differs significantly from place to place and circumstance to circumstance. Rich people in urban areas generally have access to better quality healthcare services than do the poor in rural areas, however most Indonesians can access basic healthcare. The applicant confirmed at hearing that he had accessed healthcare in Indonesia and that he had not been denied access to health care for any 5J or any other reason.

25. At his hearing with the Tribunal, the applicant said that his main discomfort with living in Indonesia was the fact that he is an atheist and that people in Indonesia are required to have a religion. The applicant was asked at hearing what would happen to him in Indonesia if he does not have a religion. He responded that Muslims will hate you as there is no one that does not have a religion. The applicant was asked what harm he feared. He said they force you to have a religion and he was forced to list Buddhist on his identity card when he was 17. He said that the officer at civil records told him to do that. The applicant was asked if he has to practice a religion such as Buddhism. He said no he was not required to practice and there was no other harm he just could not say he was atheist.

26. Country information about atheism from DFAT was raised with the applicant at hearing. DFAT reports that professed atheism in Indonesia is very uncommon; most atheists likely hide their beliefs. Atheism was associated with communism and the banned Indonesian Communist Party (PKI) during the New Order period. Atheists may communicate online, including in closed groups on social media. A religion is usually listed on a citizen’s identity card, however an option for a dash ( - ) where religion is usually placed may be possible. But many opt to list a religion on their identity card, as such (non-) identification may lead to discrimination, for example in obtaining employment. The applicant advised that he was nt aware that he could put a dash. He did not claim that his atheism has affected him in his employment and he has not indicated that he has faced discrimination on the basis of his religion or lack of religion in Indonesia.

27. In country sources told DFAT that a public confession of atheism and, particularly, attempts to convince others to share that belief could lead to blasphemy charges. However, the situation is unclear because, whether for cultural reasons or for fear of the consequences, few people do this. It is socially acceptable to say that one is ‘non-practising’ or to say that ‘religion is not a big part of my life’, but denial of the existence of God or trying to organise with others who share that belief, especially for the purpose of convincing others, is taboo. The applicant has not indicated that he has previously sought or in future seeks to convince others to become atheist. I am satisfied that his beliefs are personal to him. DFAT assesses that there is no pattern of anti-atheist violence or discrimination because so few atheists are public about their identity and thus few incidents occur. DFAT assesses that a person who is openly atheist would face a moderate risk of societal and official discrimination and violence. The risk of either societal discrimination or violence would increase if that person tried to convert others. The applicant has stated that he has not ever had a religion and he notes that he was not harmed in the past in Indonesia as an atheist. He was able to work, start a business and travel. He said that as a teenager he was told to put Buddhist on his identity documents. It would appear that on return to Indonesia he also has the option of putting a dash. He has not indicated any intent to convert others in Indonesia to atheism.

28. The Tribunal must be satisfied that the applicant would face a real chance of serious harm on his return to Indonesia. For the purpose of the refugee criterion and s 5J, s 5J(5) provides that serious harm includes but is not limited to a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill-treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and/or denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

29. The Tribunal notes that the applicant has given inconsistent information to the Department about his claims for protection and he stated at hearing that the only reason he applied for protection was because his visitor visa was expiring and he wanted time to save for a student visa. At hearing, the only fear that the applicant maintained is that he is an atheist and that Muslims will hate you if you don’t have a religion. He did not provide any examples of harm he faced in the past on the basis of his religion or lack of religion. He was able to work, start a business and travel. He said that as a teenager he was told to put Buddhist on his identity documents. It would appear that on return to Indonesia he also has the option of putting a dash. He has not indicated any intent to convert others in Indonesia to atheism and given all of these matters, the Tribunal is not satisfied there is a real chance of the applicant facing harm on his return to Indonesia on the basis of his lack of religion.

30. Additionally, given the applicant’s statements, description at hearing of his life in Indonesia and the country information outlined above, I am not satisfied that the applicant would face a real chance of harm on his return to Indonesia on the basis of his ethnicity. I am also satisfied that the applicant has not been denied access to healthcare in Indonesia and given his evidence at hearing, I am not satisfied that he faces a real chance of any harm in relation to access to healthcare on his return to Indonesia.

1. The Tribunal has considered the applicant’s profile and circumstances in their totality and is not satisfied that if he were to return to Indonesia, he would face a real chance of any harm, including serious harm on the basis of his race, religion, nationality, membership of a particular social group or political opinion now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). The applicant does not face a real chance of persecution.

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).

   Refugee: conclusion

3. The applicant does not meet the requirements of the definition of refugee in s.5H(1). The applicant does not meet s.36(2)(a).

   Complementary protection assessment

4. A criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.

5. Under s.36(2A), a person will suffer ‘significant harm’ if:

   ·     the person will be arbitrarily deprived of his or her life

   ·     the death penalty will be carried out on the person

   ·     the person will be subjected to torture

   ·     the person will be subjected to cruel or inhuman treatment or punishment, or

   ·     the person will be subjected to degrading treatment or punishment.

   ·     The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.

6. The Tribunal has considered the applicant’s claims and the evidence he provided in his protection visa application and hearing. As set out above, the Tribunal has found that the applicant does not face a real chance of harm in relation to any of his claims. Real chance and real risk involve the same standard. On the same factual findings, the Tribunal is similarly not satisfied that the applicant faces a real risk of suffering any harm, including significant harm, should he be returned to Indonesia.

   Complementary protection: conclusion

7. There are not substantial grounds for believing that, as a necessary and foreseeable  consequence of being returned from Australia to a receiving country, there is a real risk that  the applicant will suffer significant harm.

8. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

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

   Kylie Allen
   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.

   …