1836549 (Refugee)

[2024] AATA 2561

1836549 (Refugee) [2024] AATA 2561 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1836549

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Hee-Jung Kim

DATE:14 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 14 June 2024 at 4:33pm

CATCHWORDS

REFUGEE – protection visa – Malaysia – race – Chinese – fear of killing – fear of Filipino extremists – kidnapping – delay in applying for protection – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2; r 1.12

CASES

MIAC v SZQRB (2013) 210 FCR 505

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 November 2018 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, [name] (Applicant 1), [name] (Applicant 2), [name] (Applicant 3) and [name] (Applicant 4) claim to be members of the same family unit. Applicant 1 claims to be the mother of the 3 secondary applicants. They claim to be citizens of Malaysia and applied for the visas on 29 June 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations and are not members of the same family unit as a non-citizen who holds a protection visa of the same class applied for by the applicants.

3. On 12 December 2018, the applicants applied for review of the delegate’s decision to the Tribunal. Since lodging their review application, the applicants have not provided any additional material in support of their protection claims to the Tribunal, including by responding to the Tribunal’s request for pre-hearing information on 26 March 2024.

4. On 2 May 2024, the Tribunal invited the applicants to appear before it on 14 June 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicants’ favour on the basis of the material before it. The invitation was emailed to Applicant 1’s email address which the applicants provided to the Tribunal in their review application for the purpose of corresponding with the Tribunal. The applicants previously communicated with the Tribunal from this same email address to request Medicare letters on 14, 17 and 27 August 2020 and 29 March 2021. There is no information before the Tribunal that the applicants have submitted a Change of Contact Details form or that they contacted the Tribunal to update their contact details for corresponding with the Tribunal.

5. The applicants did not appear before the Tribunal on the day of the hearing at the scheduled time and place. There is no evidence that the applicants contacted the Tribunal to explain their non-appearance or to seek a postponement of the hearing. On the day of the hearing, the Tribunal Registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but none of the applicants were present.

6. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing and that notice of invitation to appear was given to the applicants in accordance with s 425A of the Act. The applicants failed to appear and they have not provided any reasons for their non-appearance. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 (the Department), 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in this case is whether the applicants meet the criteria for the grant of a protection visa under s 36(2) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

14. The applicants claim to be citizens of Malaysia and provided copies of the biopage of their Malaysian passports. Applicant 1’s passport copy indicates that it was issued [in] 2010 in Kota Kinabalu, Sabah, Malaysia. Applicant 2’s passport copy indicates that it was issued [in] 2013 in Keningau, Sabah, Malaysia. Applicant 3’s passport copy indicate it was issued [in] 2014 in Keningau. Applicant 4’s passport indicates that it was issued [in] 2016 in Keningau. The delegate was satisfied of each applicant’s identity and that they are citizens of Malaysia. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicants are citizens of Malaysia and that Malaysia is the receiving country for the purposes of assessing their claims for protection.

    Members of the same family unit

15. The applicants claim to be members of the same family unit but have not provided any corroborating evidence to support their family relations. The information before the Tribunal as provided by the applicants in their protection visa application, the passport biopage copies and their review application includes the following:

    ·Applicant 1, born in [specified year] in Sabah, is widowed. She claims to be the mother of Applicants 2, 3 and 4. Her employment history provided in the protection visa application indicates she has been employed since [year] as [an occupation 1] in a [business 1], [occupation 2] at a [business 2] and a [store], all in Keningau, Sabah until December 2012, then she has had casual work from January 2013 to June 2018.

    ·Applicant 2, born in [year] in Sabah, claims to be the son (currently [age]-year-old) of Applicant 1 and that he has never been married. He arrived in Perth, Australia in August 2013 on the same date as Applicant 1. He claimed that he completed up to middle school in Keningau, has only had casual job as [an occupation 3] between January 2012 and June 2018 and has been financially supported by family.

    ·Applicant 3, born in [year] in Sabah, claims to be the daughter (currently [age]-year-old) of Applicant 1 and that she has never been married. She arrived in Adelaide, Australia in October 2014. She claimed that she completed up to middle school in Keningau, has never worked and has been financially supported by family.

    ·Applicant 4, born in [year] in Sabah, claims to be the son (currently [age]-year-old) of Applicant 1 and that he has never been married. He arrived in Melbourne, Australia in April 2016. He claimed that he completed up to middle school in Keningau, has only had casual work as [an occupation 3] between January 2007 and June 2018 and has been financially supported by family.

    ·The applicants provided that they all lived at the same address in Keningau, Sabah, Malaysia. They also only provided one address in [Suburb 1], NSW, Australia as their residential address in their protection visa application and the review application.

16. On the information before the Tribunal and in the absence of any evidence to the contrary, the Tribunal accepts that Applicants 2, 3 and 4 are dependent children of Applicant 1, and that they are members of the family unit[1] of Applicant 1.

    [1] As defined in reg 1.12(4) of the Migration Regulations 1994.

    Evidence before the Department

17. The applicants’ protection visa application contained limited information. The applicants’ background information is summarised above. As noted above, they only provided one address in Keningau, Sabah, Malaysia for all applicants. They did not provide the details of any other family members in Malaysia, Australia or elsewhere. They claimed that they have never travelled to any other countries other than Australia. They arrived in Australia on different dates to different cities. They claimed to be ethnic Chinese.

18. In relation to their reasons for claiming protection in Australia, Applicants 2, 3 and 4 stated that they are not making their own claims for protection. Applicant 1 provided the following information as reasons for leaving and fearing returning to Malaysia:

    ·There is no safety for her and her family and there are risks of being killed when her family are living in Sabah. The military man from the Philippines came to her living places by boat. They kidnapped and murdered people around her. They were under constant threats of being killed when they were living in Sabah.

    ·They sought help from the Malaysian government but they did nothing to protect her and her family.

    ·She tried to move to other places but it is difficult to survive because Chinese people are discriminated in Malaysia. They are all corrupted in Malaysia and discriminate against Chinese people and never do anything to protect Chinese people.

    ·She and her family will be forced to return to the dangerous places of Sabah and they will face murders, robberies and kidnappings from the Filipino military man.

    Evidence before the Tribunal

19. The applicants have not provided any additional information or evidence to the Tribunal in support of their protection claims or to update their circumstances since lodging their application for review.

    Reasons and findings

20. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

21. The Tribunal has reviewed the material in the Department and Tribunal files. The very limited evidence summarised above only consisted of some information about the applicants’ identities and very general claims about their reasons for seeking protection which were very unclear and devoid of any specific or meaningful details. The Tribunal’s understanding of the applicants’ claims from the very vague written evidence is that they fear harm in their home state of Sabah from the Filipino military man and that they have been discriminated because of their Chinese ethnicity.

22. There is very little information about the claimed threat of harm from the Filipino military man that the applicants escaped to satisfy the Tribunal that they in fact experienced any such harm or threat. For example, they have not provided any detailed accounts of being personally robbed, threatened or hurt by the military man. Applicant 1 claims that the military man kidnapped and murdered people around her but she has not provided any details such as the identity of the people who were harmed, her relationship with the victims and the circumstances of the claimed kidnapping and murder including dates and places.

23. They have not provided any meaningful details or explanation about the claimed help they sought from the Malaysian government. The written information does not state when they sought help, what kind of protection they sought, which authority or to whom they sought help and why they needed protection. They have not explained or elaborated on the general claim that the government did nothing to protect them.

24. Information from independent sources indicate that extremists based in the southern Philippines are active in the eastern coastal areas of Sabah, between the towns of Sandakan and Tawau, and kidnapping in these areas is an ongoing threat. The Malaysian authorities have increased security in the region, the Eastern Sabah Security Zone, and the Sabah Government has restricted the use of waterways in the areas.[2]

    [2] See Department of Foreign Affairs and Trade’s Smartraveller Travel Advice for Malaysia under ‘Safety – Kidnapping’ at Malaysia Travel Advice & Safety | Smartraveller; UK Government’s Foreign Travel Advice on Malaysia under ‘Terrorist kidnap’ at Safety and security - Malaysia travel advice - GOV.UK ( Canadian Government’s Malaysia travel advice at Travel advice and advisories for Malaysia; US State Department’s Malaysia Travel Advisory at Malaysia Travel Advisory (state.gov).

25. The applicants’ written evidence provide that they only lived in Keningau, which is in western Sabah inland, far from the eastern coastal areas where the threat of kidnapping is reported. Further, despite claiming that the family was ‘lucky to escape from their deadly harms’ and being ‘under constant threats of being killed’, Applicants 3 and 4 did not depart Malaysia with Applicants 1 and 2 in August 2013. The information in their protection visa application states that Applicant 3 departed in October 2014, over a year after Applicants 1 and 2 left, and Applicant 4 departed another 1.5 year later in April 2016. There is no explanation about these delayed departures of the family members and how Applicants 3 and 4 were able to avoid the claimed constant threat of harm while remaining in Malaysia.

26. They also have not explained their delay in applying for protection in Australia. In Applicants 1 and 2’s case, the application for protection was lodged almost 5 years after they arrived in Australia. For Applicant 3, the date of protection visa application lodgement is almost 4 years after arrival, and for Applicant 4, the lodgement date is more than 2 years after arrival.

27. These lengthy delays in departure from Malaysia and applying for protection in Australia do not satisfy the Tribunal that they left Malaysia in fear for the reasons they claim.

28. Regarding their claim to have experienced discrimination as Chinese in Malaysia, the claim is again very general and vague without any specific examples or details of personal experiences. There is no information about the instances of discrimination they experienced personally, for example in finding work or at workplace. They also have not provided further details about their claim that Malaysians are all corrupted and discriminate against Chinese people. There is insufficient information for the Tribunal to be satisfied that the applicants experienced any discrimination or were impacted by corruption against them on the basis of their Chinese ethnicity in Malaysia.

29. In this regard, DFAT[3] reports that Chinese Malaysians are Malaysia’s second largest ethnic group, comprising a high proportion of the professional and educated class, are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians. DFAT assesses Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system, or the civil service, or when opening or operating a Chinese Malaysian owned business in the private sector. The available information before the Tribunal does not indicate that the applicants attempted to gain entry into the state tertiary system or the civil service, or that they tried to open and operate a business, and that they experienced discrimination in such circumstances.

    [3] DFAT Country Information Report – Malaysia, 29 June 2021, at [3.8]-[3.11].

30. Applicant 1 also has not provided any details to substantiate the vague claim that she tried to move to other places, for example identifying the places she tried to move to, when she tried to move and the circumstances leading to such attempts. On the contrary, she only provided one address in Keningau, Sabah where she claimed to have lived from [year] (her birth) to August 2013 (her departure from Malaysia), and her employment history indicates that she has been consistently employed from [year] to December 2012 in Keningau, Sabah. The available information does not indicate that she has had difficulty finding jobs or to earn a living, and there is no information to support her vague claim that it is difficult to survive for Chinese people who are discriminated in Malaysia or that she and her family experienced difficulties in surviving or subsisting in Malaysia.

31. The applicants have not submitted any additional information to the Department or the Tribunal to support and to clarify the vague written claims. None of the applicants attended the scheduled hearing before the Tribunal to provide more detailed oral evidence about their claims, and there is insufficient evidence before the Tribunal to be satisfied of any of the claims.

32. The Tribunal accepts the applicants’ background information set out at [15] and that they are a family from Keningau, Sabah, Malaysia. However, based on the very general and vague information devoid of important, specific and personal details in the material available before the Tribunal, it does not accept the applicants’ claimed reasons for leaving Malaysia and fear of returning to Malaysia. It does not accept that the applicants were under constant threat or at risk of being killed, kidnapped, robbed or harmed by the military man from the Philippines. It does not accept that the applicants were discriminated for their Chinese ethnicity or that such discrimination made it difficult for them to survive in Malaysia. It does not accept that the applicants tried to move to other places for safety or that they sought help from the authorities but the Malaysian government did nothing.

1. As the Tribunal rejects the applicants’ claims, it does not accept that they will be harmed in any way in relation to these claims, if they return to Malaysia now or in the foreseeable future.

2. For the reasons set out above and having considered the available material and the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that the applicants face a real chance of serious harm on return to Malaysia for their claimed reasons or for any other reason in s 5J(1)(a) of the Act, now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicants have a well-founded fear of persecution in Malaysia, and the applicants do not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicants are persons in respect of whom Australia has protection obligation under s 36(2)(a) of the Act.

3. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

4. The Tribunal has found that the applicants will not be harmed for their claimed reasons or for any other reason upon return to Malaysia. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[4] for the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicants will be harmed upon return to Malaysia. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   [4] MIAC v SZQRB (2013) 210 FCR 505.

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

   DECISION

6. The Tribunal affirms the decision not to grant the applicants protection visas.

   Hee-Jung Kim
   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.

   …