1829743 (Refugee)

[2022] AATA 3426

1829743 (Refugee) [2022] AATA 3426 (16 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Samuel Wellington (MARN: 1383180)

CASE NUMBER:  1829743

COUNTRY OF REFERENCE:                   Ghana

MEMBER:Roslyn Smidt

DATE:16 August 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2022 at 11:45 AM

CATCHWORDS

REFUGEE – Protection visa – Ghana – feared she would be hurt by the spirit – feared her family and others would force her to become a priest and harm her if she refused – evidence to has been extremely confused and often contradictory – credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, 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 26 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 is a citizen of Ghana, applied for the visa on 22 August 2017.

3. The applicant appeared before the Tribunal on 2 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Twi (Akan dialect) and English languages.

4. The applicant was represented in relation to the review.

   Criteria for a protection visa

5. 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.

6. 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.

7. 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).

8. 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–5LA, which are extracted in the attachment to this decision.

9. 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

10. 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.

    background

11. The applicant is a [age]-year-old woman of Christian religion and Akan ethnicity. She arrived in Australia on [date] July 2014 as a dependent of her husband who held a student visa. The visa was valid until 30 August 2017. She applied for protection on 22 August 2017.

12. At the hearing the applicant said that her relationship with her husband had broken down after he completed his studies and she had lost contact with him. She understood he had remarried and remained in Australia.

    Claims and evidence

    Evidence to the Department

13. In her initial application the applicant said that she was born in Kumasi but lived in [Town 1] in Accra from January 2000 until her departure for Australia. She said she had not received any education and had never worked outside the home. She has a son and a daughter who were born in Accra and remain in Ghana.

14. The applicant stated that she had been possessed by the spirit of her family deity. When this happens, she loses consciousness and her elders use her to communicate with deceased ancestors. Her elders told her that she could not be a Christian because that would cause her to lose her spiritual abilities. After arriving in Australia, she found Christianity and special prayers cast out the spirts that had possessed her. She said that she feared being harmed by her family elders if she returned to Ghana because she had taken up Christianity and lost her spiritual abilities and her ability to communicate with deceased ancestors.

15. At interview, the applicant said that she had left her village at the age of [age] [in about 2002] and gone to live with an aunt in Accra. She went to church in Accra but she still got possessed off and on. These episodes occurred randomly and she could not predict when they would occur. When she had episodes in Ghana, she became confused and her mother took care of her. She has had some episodes in Australia, but less frequently than in Ghana. She said that she did not fear being harmed by anyone in Ghana, she feared she would be hurt by the spirit.

16. The delegate accepted that the applicant believed she was sometimes possessed by spirits but noted that she had stated during the interview that her fears related only to this, that she did not fear that her family or anyone else would harm her in Ghana and that her mother cared for her when she had an episode. In light of this evidence, the delegate found her earlier written evidence unreliable and did not accept that she met the criteria for a protection visa.

    Evidence to the Tribunal

17. The applicant provided a copy of the delegate’s decision to the Tribunal.

18. In a submission dated 13 April 2022 the applicant said that at the age of [age] she was possessed by the spirit of the family [deity] . This involved going into a trance and losing consciousness for three hours. When she regained consciousness, she was in the family’s deity fetish room surrounded by male elders of the family. She was anointed as the chosen Okomfo, her family deity. Part of the role of the Okomfo involved dancing during the Akwasidae festival and being the protector of the Tigari shrine. During this festival she became possessed by the spirit of the family. She had no power to prevent this happening. Before leaving Ghana, she lived in Accra, but she was always summoned by her elders to assist them spiritually as a medium to consult ancestors and solve family problems in relation to witchcraft issues when the need arose.

19. The applicant said that the elders had forbidden her from going to church or getting an education because they believed this would interrupt her link with the ancestor deity.

20. The applicant said that she had not been possessed by any spirits since she arrived in Australia and she started to receive special Christian prayers. She believed that she would be physically harmed by her elders because she had renounced her anointment and that they would also cast a spell on her which would render her insane. She said that she would not be able to obtain any protection from the government or escape these problems by relocating in Ghana.

21. On 13 April 2022 the applicant provided copies of two reports from the Canadian Immigration and Refugee Board. The first is dated 1994 and provides an overview of the manner in which fetish priests are selected and initiated. The second is dated October 2006 and provides information on traditional Ghanaian beliefs. It notes that most Ghanaians have some involvement with Christianity while also maintaining some traditional beliefs. It quotes an academic who states that people who are in line to take on important positions can face significant social pressures to perform the role for which they have been selected, particularly if they live in a village.

22. The applicant provided a character reference from [a church] which states that she had reported being abused spiritually and by elders in her tribe in Ghana. There is no suggestion that the author of the letter had first-hand knowledge of her life in Ghana.

23. The applicant attended a hearing of the Tribunal on 2 May 2022.

24. The applicant said that she married for the first time when she was very young and had two children. She could not remember exactly when her first husband died but it was about a year before she married her second husband. She married her second husband about two years before they came to Australia in July 2014.

25. The applicant said that she was living in her hometown [Area 1][1] in the eastern region of Ghana when she married her first husband. She said that she moved to Accra at about the time she married her second husband. I noted that she had previously stated that she moved to Accra in 2000 and that she lived there with an aunt and asked her to clarify. She said that she was forced to flee her hometown because she was being pressured to take on a traditional religious role. I again noted that her earlier evidence indicated that she had lived at the same address in Accra from 2000 until 2014. She confirmed that this was correct and said she lived with her second husband and his aunt. I observed that this appeared to be at odds with her evidence that she had married her second husband about two years before coming to Australia. She said that she lacked education which made it difficult for her to provide evidence. I observed that in my experience uneducated people were nevertheless able to recall past events with a reasonable degree of accuracy and added that I remained very confused regarding where and with whom she had lived prior to coming to Australia. She said that she had moved to Accra to escape pressure from her family. She met her second husband there and began to live with him. He came from the same village but lived in Accra.

    [1] [Details deleted].

26. The applicant said her children are aged [age] and [age]. She confirmed that they had been born in Accra and added that she had moved to Accra when she married her first husband. I noted that she had previously stated that she had been very young when she married for the first time and observed that this suggested that she had moved to Accra at a young age. She did not dispute this but said that her hometown was not very far from Accra so she could come and go at will.

27. I noted the applicant appeared to have resided at the same address while living in Accra. She said that she lived in the same area. I observed that according to my research [Town 1] where she lived appeared to be a modern affluent area. She confirmed that this was correct.

28. I observed that contrary to some of her earlier evidence it appeared that she had gone to live in Accra shortly after marrying her first husband in [Area 1] at the age of about [age]. She confirmed that this was correct and added that she moved back to [Area 1] after his death. I observed that she had previously stated that she married her second husband about a year after the death of her first husband and that she had lived with her second husband in Accra, which suggested that she had returned to [Area 1] for a year at most. She said that she was unable to recall dates. I advised her that I accepted that she did not recall dates, but I had great difficulty accepting that she would not recall roughly when these events occurred. The applicant made no comment.

29. I noted that the applicant had stated that she was a Christian and observed that she had made differing statements regarding when she became a Christian. She said that she had become a Christian after coming to Australia, specifically when she became involved with the [Church]. She said that nobody in her family was Christian. I noted that she had previously stated that she went to church in Accra with her aunt which suggested that she had been a Christian in Ghana. She said that she had misunderstood my earlier question and thought she had been asked when she first went to church in Australia. She said she had gone to church in Ghana seeking protection from her family who were pressuring her to serve the gods. She said that she began to look for an appropriate church when she arrived in Accra, but it took some time to find one.

30. I advised the applicant that it was my understanding that some 70 per cent of Ghanaians were Christians and most of the rest were Muslims.[2] While many Ghanaians appeared to also hold traditional beliefs, very few adhered only to the old religions and it therefore seemed unlikely that nobody in her family was Christian. She maintained that her claims were true.

    [2] See US Department of State Report on International Religious Freedom: Ghana 2021

31. I noted that the applicant had stated that she had had problems with her elders and asked for more information on who these people were and where they lived. She said that they were the custodians of the gods and they wanted to force her to be a priest and worship the gods which was contrary to Christian beliefs. I asked when the men first told her that they wanted her to be a priest. She said that it was after her first husband died. Whenever the gods wanted their way she would be possessed by the spirits. This could happen at any time and she only found out what had happened after she recovered. I asked her to confirm that this occurred after both her children had been born and her first husband had died. She said that it was after her children were born and added that she could not return to Ghana because she would be forced to do things against her Christian faith.

32. I asked the applicant why she had been chosen to become a priest. She said that the gods selected priests and when this happened the person was possessed. She was selected because she had been possessed by the gods. She said that as a priest she would be compelled to perform rituals such as slaughtering animals and blood would be poured on her. Later in the hearing it was established that she had been living in Accra during the time her family was pressuring her to become a priest and had not performed any of these rituals.

33. I observed that it appeared that she had been selected to be a priest about three years before she came to Australia (after the death of her first husband) and asked if anyone had harmed her during that time. She said that families could hire people to harm her or kill her. When asked if she actually had been harmed, she said that she kept running away. I noted that for about two years of that time she was married and living with her second husband and asked if he had protected her. She said that he had been a bit interested in traditional religious beliefs.

34. I advised the applicant that while my knowledge of traditional religions in Ghana was relatively limited, it was my understanding that it would be unlikely for a widow with two children to be selected to become a priest. She said that this was not correct. As long as the selected person was inside Ghana they would be possessed by the gods and forced to take up the role. She could only avoid this by leaving the country.

35. I noted that she had spoken about being possessed and observed that people in different cultures had different beliefs about the cause and meaning of such episodes. In Ghana it appeared to be viewed as possession by a spirit while in Australia it was more likely to be viewed as a sign of an illness or mental health issue. She said that it was difficult to explain and she had no awareness of what had happened until she came back to her senses. She said that she had not had any episodes in Australia. I noted that according to her earlier evidence she had continued to have episodes in Australia until she joined the [church]. She said that she had had one episode in Australia but after the people at the [church] prayed for her there were no more episodes.

36. I asked the applicant to explain exactly what she feared would happen to her if she returned to Ghana. She said that she was afraid that her family would force her to become a priest and harm her if she resisted.

37. I advised the applicant that I had some doubts about the claims she had made. For example, she had previously stated she began to experience episodes of possession and her family began to attempt to force her to become a priest when she was very young, but she had told me that these problems started many years later after the death of her first husband, about three years before she left Ghana. In addition, she had given differing accounts of when she moved to Accra and where she had lived in Ghana, which suggested she might not be giving honest or accurate evidence. She said that she had difficulty providing an accurate timeline because she lacked education.

38. I also advised her that information I had seen suggested that people who refused to take on traditional roles may face problems with their family if they lived in a village, but not if they relocated to Accra and observed that she appeared to have been living in a reasonably affluent area in Accra for some 14 years before she came to Australia. She said that even if someone lived outside their village, they could face problems. If someone was possessed people would become concerned and contact their family and they would face problems.

39. I advised the applicant that the criteria for a protection visa covered circumstances in which someone feared harm from other people or organisations, not from fear that they would be possessed by gods. She said that her fears related to her family and what they would do because she had been chosen to serve as a priest and they would face a calamity if she refused to take on that role.

40. I noted that the applicant had claimed that her family would prevent her from becoming a Christian and advised her that it was my understanding that some 70 per cent of Ghanaians were Christians and I therefore had difficulty accepting that her family would be able to prevent her from following that religion. She said that once someone has been selected to be a priest the wishes of the family were paramount.

41. I asked the applicant if there was anything she wished to add. She said that she would be at risk of harm if she returned to Ghana and she was at peace and protected in Australia and wanted to remain. She also said that her children’s future depended on her ability to remain in Australia.

    Consideration of claims and evidence

1. The applicant’s evidence to the Department and the Tribunal has been extremely confused and often contradictory. She claimed at different times that she had resided in Accra from 2000 and that she had resided there only after her second marriage in about 2010; that she had first been possessed of spirits at a young age before moving to Accra and that this had not occurred until after her first husband died in about 2009; that she had participated in some of the ceremonies required of priests and that she lived in Accra during the time she was being pressured to become a priest and had not participated in any rituals; that she had not been a Christian before arriving in Australia and that she had been a Christian and attended church in Accra and that she had some episodes of possession in Australia, that she had no episodes in Australia and that she had only had one episode in Australia. She also claimed at different times that she feared being possessed by spirits not by people and that she feared her family and others who would force her to become a priest and harm her if she refused.

2. When I advised the applicant that I had difficulty accepting some of her claims as her evidence was confused and contradictory, she said that these difficulties arose because she lacked education. I acknowledge that lack of education can contribute to an applicant providing an accurate coherent account of their claims. I also acknowledge that some confusion regarding dates and timing of events is not uncommon, particularly when the events occurred some time in the past. Finally, I acknowledge providing evidence at a hearing can be stressful and that providing evidence with the assistance of an interpreter can be difficult and contribute to some confusion when providing evidence. However, I do not accept that the numerous significant inconsistencies in the applicant’s evidence can be explained in this way. I believe that the applicant’s evidence was confused and contradictory because it was largely untrue and she either did not recall her earlier claims or changed her evidence in an attempt to overcome earlier problems.

3. After considering all the evidence, I do not accept that the applicant experienced episodes which she and others believed to be possession by spirits in Ghana or in Australia or that her family believed that she had been chosen by the gods to be a priest or to hold some other traditional role or that she faced pressure or threats from her family or anyone else to take on the role of a traditional priest or something similar prior to leaving Ghana. I believe she concocted these claims in an attempt to obtain protection and residency in Australia.

4. I accept that the applicant is a Christian and would continue to practise her religion if she returned to Ghana. As pointed out at the hearing, some 70 per cent of the population of Ghana are Christians. There is no credible evidence before me which suggests that she would be denied the right to practise her faith or face serious or significant harm for doing so if she returned to Ghana.

5. There is no credible evidence before me which suggests that the applicant faces a real chance of suffering serious or significant harm for any reason if she returns to Ghana now or in the reasonably foreseeable future. I am therefore not satisfied that she has a well-founded fear of persecution in Ghana for any of the reasons set out in s 5J(1) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Ghana, there is a real risk that she will suffer significant harm.

   CONCLUSIONS

6. 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).

7. 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).

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

   decision

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

   Roslyn Smidt
   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.

   …