1901034 (Refugee)

[2022] AATA 2416

1901034 (Refugee) [2022] AATA 2416 (3 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1901034

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Paul Noonan

DATE:3 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 3 June 2022 at 12.59pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – fear of harm from creditors of former employer –new claim of fear of harm from husband and his creditors raised at tribunal hearing – gambling debts – Australian-born child with another partner – religion – Catholic – political opinion – credibility – late claim – confused and contradictory evidence – no threat or fear of harm from employer’s creditors – no current information about husband’s situation – no or limited political activity – country information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65, 423A

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

Guo v MIEA (1996) 64 FCR 151

Kopalapillai v MIMA (1998) 86 FCR 547

MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445

MIMA v Rajalingam (1999) 93 FCR 220

Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 14 January 2019 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 Vietnam, applied for the visa on 24 July 2018. The delegate refused to grant the visa on the basis that there is not a real chance of persecution of the applicant for a refugee reason or substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk she will suffer significant harm. The delegate was satisfied that the applicant’s country of nationality is Vietnam and the Tribunal is also so satisfied, on the basis of the biodata with respect to her Vietnamese passport, a copy of which is retained on the Department systems and file, and accordingly has assessed her claims with respect to Vietnam as the country of reference or receiving country for the purposes of this appeal.

3. The applicant appeared before the Tribunal on 31 May 2022 to give evidence and present arguments by Microsoft Teams video. The Tribunal originally scheduled an in person hearing, however the applicant requested a remote hearing because of her remote location and caring responsibilities. The Tribunal determined it was reasonable, in these circumstances, to hold a hearing by video conference. The applicant is unrepresented. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

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

8. 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

9. 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.

   Procedural history

10. [In] May 2018 the applicant arrived in Australia on a FA600 visa. She then proceeded to apply for protection on 24 July 2018.

11. In applying to the Tribunal for review of the delegate’s decision, the applicant has supplied the Tribunal with a copy of the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant has made the following pertinent disclosures with respect to her background and profile. She was born on [Date]. She was born in [Village] in Ba Ria Province, Vietnam. She speaks, reads and writes Vietnamese only. She is married to a [Mr A] who resides in Vietnam. She also has two sons, born in [Year 1] and [Year 2], who also reside in Vietnam. Her religion is Catholic. She is in contact with her family, including her husband and sons on a weekly basis. She travelled to [Countries 1-4] in 2017 for business and to [Country 5] for business in 2018. Since being in Australia she has worked as [an Occupation] on [workplaces]. Prior to leaving Vietnam she worked for [Company 1], which is in the [work sector] industry, as an assistant manager, for 10 years.

13. In her written claims for protection the applicant made the following claims with respect to fearing persecution should she be required to return to Vietnam:

    ·She fears persecution because of the actions of creditors of her ex-employer, [Company 1].

    ·She fears persecution because she is opposed to the Communist Party authorities in Vietnam and has posted her opinions on the internet.

    ·She fears persecution because she is Catholic, which is opposed by the authorities.

14. With respect to the applicant’s religion and political opinion, the delegate noted that the applicant has not presented any evidence that she has undertaken any high-profile postings expressing a political view. The delegate noted that country information does not reflect that a person is at risk of persecution for reason of being a Catholic if they have no adverse political profile. Further, as the applicant did not present any evidence of political postings on the internet, had left the country legally and unimpeded and provided scant detail about her activities in this regard, the delegate decided that she had no adverse political profile with the authorities. As a result, the delegate concluded that there is no real chance the applicant will suffer harm for these reasons if she returns to Vietnam. For the following reasons, the Tribunal has decided to affirm the delegate’s decision.

15. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1]  However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

16. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

17. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

18. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

19. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

20. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

    Claim - domestic violence and husband’s creditors

21. After discussing her claims at the outset of the hearing, the applicant stated that she also fled Vietnam because her husband was violent towards her and because his creditors threatened her. When asked why she had not made these claims prior to the hearing or in her original written claims for protection, the applicant stated that she had not raised this claim prior to now as she had not wanted to write too long a claim in her written claims for protection. The Tribunal discussed the potential adverse credibility findings this may lead to under s 423A. The Tribunal put to the applicant that it may expect that she would put all of her claims with respect to fearing harm, should she be required to return to Vietnam, and her explanation for the omission may not be considered reasonable in this context. She then submitted that she had not realised that these issues may be grounds for seeking protection. The Tribunal noted that the applicant had completed the claim form herself, which she agreed was the case.

22. The Tribunal questioned the applicant about her relationship with her husband and family. She gave evidence that her children live with her husband’s family and she remits money to them. She stated that her husband had gambling problems and had incurred debts. He was always angry and used to hit her. His creditors had also approached her and threatened her with harm if he did not pay his debts. She submitted that she had approached the authorities about her husband and he had run away. She then claimed that she does not know his current status and he may have re-partnered. She tried to get a divorce from him from Australia but he rejected it. She then confusingly stated that she knows he sneaks back into the village at night to spend time with their children indicating she does in fact know his status in so far as where he resides and his movements. She also submitted that she fears harm from her husband because, while in Australia, she re-partnered and has a young autistic child. She is no longer with her partner. She fears her husband will harm her if she returns with this child. She submitted that the child is an Australian citizen but does not have any paperwork to verify this.

23. The Tribunal has carefully considered these new claims by the applicant. The Tribunal does not accept the applicant’s initial explanation for the omission of these claims that she did not want to write too much as being plausible. When this was put to the applicant she then submitted that she had not realised these could be grounds for a claim. The Tribunal simply does not accept these explanations for the omission of these claims as reasonable. If the applicant had fled Vietnam for fear of harm from her husband and/or her husband’s creditors, with the intention of claiming asylum in Australia, the Tribunal would expect that she would set these claims out in her initial claims. To then claim that she did not want to write too much or that she did not realise these could be grounds for protection is simply not credible if she had fled for fear of harm for these reasons. The Tribunal draws an inference adverse to the credibility of these claims. In addition, the applicant’s evidence with respect to her husband’s situation was confused and contradictory, with her variously claiming she did not know his situation and that he had fled the area after she approached the authorities, but also claiming that he regularly snuck back into the village to see their children. She also wrote in her claim that she was in regular weekly contact with him. Her evidence with respect to the claimed creditors was also vague. She stated that she did not know the current situation with respect to her husband’s creditors and she has not made any attempts to ascertain if money was still owing, or if the creditors were still making threats, which would be easy to ascertain if in fact her husband remained in regular contact as she set out in her written claims.

24. The Tribunal has also considered the applicant’s claim with respect to her new child. The Tribunal accepts that the applicant may be apprehensive with respect to her husband’s reaction if the child is actually as a result of an affair with someone else (although the applicant presented no independent evidence to the Tribunal that this is the case), but ultimately the applicant’s husband’s reaction is unknown and wholly speculative. On balance, the Tribunal is not satisfied as to the credibility of the applicant’s new claims to fear harm from her husband, or from her husband’s creditors, and considers that they have simply been introduced at this late stage in an attempt to strengthen her claims after reading the delegate’s decision. The Tribunal is satisfied that there is no real chance of serious harm to the applicant from her husband or his creditors either now or in the reasonably foreseeable future should she be required to return to Vietnam.

    Claim - religion

25. The applicant stated that she fears harm from the authorities for reason of her Catholic religion. The Tribunal discussed with the applicant that DFAT assesses that in-country sources state that Catholics generally do not experience societal discrimination. Such discrimination cannot be ruled out, but DFAT understands from in-country sources that there is not a pattern of such discrimination. DFAT assesses that Catholics who belong to registered churches and are not politically active face a low risk of official harassment. In-country sources told DFAT that, in general, Catholics are able to worship freely and receive sacraments such as the Eucharist, Reconciliation (confession) and Confirmation. Some Catholics in remote areas have trouble accessing a priest who may not be able to travel to remote areas, whether because authorities will not allow it or because of the remoteness. Catholics who are perceived to challenge the authority or interests of the Communist Party of Vietnam (CPV) and its policies, particularly through political activism, face a moderate risk of official discrimination from authorities or their proxies, which may include arrest or violence.[2]

    [2] DFAT Country Information Report, 11 January 2022, Vietnam, P.15

26. The applicant gave evidence that she had not been politically active in Vietnam and had not experienced harm for reason of her religion in Vietnam.

27. Having regard to the lack of past harm to the applicant associated with her religion, the applicant’s low profile and lack of past political activity, and the country information with respect to the situation for Catholics in Vietnam, the Tribunal is satisfied that there is no real chance of serious harm to the applicant from the authorities or anyone else for reason of the applicant’s religion, either now or in the reasonably foreseeable future, should she be required to return to Vietnam.

    Claim – political opinion

28. The Tribunal notes that the latest DFAT report indicates that Vietnam is a one-party state and opposition parties are effectively illegal. Threats to CPV legitimacy are seen as threats to the state and are not tolerated.[3] However, the applicant confirmed that she had not been politically active in Vietnam. Further, as discussed at hearing, the Tribunal notes that she was able to leave Vietnam legally and unimpeded, which reflects that she had no adverse profile with the authorities. The applicant contended that she had made some posts against the government while in Australia. The Tribunal noted that she has not submitted any examples of this and the applicant then stated that her posts were replies to other people’s posts on [Social media] and she had not retained any record of her replies. The Tribunal would expect that, if the applicant had undertaken online activism against the authorities, she would have some record of this and would be able to explain what she had done and what she was trying to achieve. The Tribunal is satisfied that the applicant has not undertaken any online activism while in Australia that would raise her profile to the extent that she would attract the adverse attention of the Vietnamese authorities. She is therefore of no adverse interest to the authorities for reason of her political opinion. The Tribunal is satisfied that there is no real chance of serious harm to the applicant from the authorities, or anyone else, for reason of the applicant’s political opinion either now, or in the reasonably foreseeable future, should she be required to return to Vietnam.

    [3] DFAT Country Information Report, 11 January 2022, Vietnam, P.18

    Claim – past employer’s creditors

1. The Tribunal noted that this claim was lacking in expected detail such as whether the applicant had actually been threatened with harm by her ex-employer’s creditors. The applicant confirmed that she had not been threatened with harm and that she did not fear harm should she be required to return to Vietnam for reason of her ex-employer owing money to its creditors. The Tribunal notes that the applicant’s ex-employer was a [work sector] company. On the basis of the applicant’s own evidence, the Tribunal is satisfied that there is no real chance of serious harm to the applicant from her ex-employer’s creditors or anyone else for reason of her ex-employer’s debts either now or in the reasonably foreseeable future should she be required to return to Vietnam.

   Complementary protection

2. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.

3. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if she returns to Vietnam. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that the applicant will suffer significant harm for reason of her husband’s claimed violence, her husband’s claimed creditors, her religion, her political opinion or her ex-employer’s creditors.

   Overall conclusions

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

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

6. 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

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

   Paul Noonan
   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.

   …