1904881 (Refugee)

[2024] AATA 3366

1904881 (Refugee) [2024] AATA 3366 (10 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1904881

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Jessica Edis

DATE:10 July 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 July 2024 at 8:56am

CATCHWORDS
REFUGEE – protection visa – Fiji – reported corruption in the military – severely beaten and threatened – lapse of time since incident – ‘real chance’ test – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

BACKGROUND TO THE REVIEW

1. The applicant is a [age]-year-old Fijian citizen. He travelled from Suva to Sydney [in] July 2017. He entered Australia on a Subclass 600 visitor visa.

2. He lodged an application for a Permanent Protection (Class XA) (Subclass 866) visa with the Department on 24 August 2017. His wife was included as a secondary applicant. However, the couple has since separated.[1]

   [1] The applicant’s wife has a discrete Tribunal case. Her circumstances will be considered as part of those proceedings and will not be taken into account in this case.

3. The applicant set out reasons for claiming protection on the application form. They were to the effect that he left Fiji because he had been beaten and tortured by the military police as retribution for having reported corrupt behaviour and he feared being tortured or killed by the same officers if he returned.

4. The applicant was not interviewed by the Department in relation to the visa application and was not asked to provide evidence or further information to substantiate his claims.

5. On 9 February 2019, the delegate refused to grant the visa on the basis that the applicant did not meet the visa criteria. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 3 March 2019.

6. On 31 May 2024 the applicant was invited to a Tribunal hearing to give evidence and present arguments about his claims.

7. On 21 June 2024 the applicant appeared at the hearing. He was unrepresented. The hearing was conducted with the assistance of a Fijian interpreter. There were no communication issues.

8. The applicant answered my questions about his case and provided me with further information about his claims and personal circumstances. He presented as a polite and earnest individual. However, for the reasons that follow, I am not satisfied that he meets the criteria for the grant of a protection visa. Accordingly, I must affirm the decision under review.

   CRITERIA FOR A PROTECTION VISA

9. At the outset of the hearing, a basic overview of the protection visa criteria was explained to the applicant which is summarised below.

10. The criteria for a protection visa are found at s 36 of the Act and in Schedule 2 to the Migration Regulations 1994 (Cth).[2] 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 because they:

    ·meet the definition of a ‘refugee’ (per s 36(2)(a)); or

    ·are entitled to ‘complementary protection’ (per s 36(2)(aa)); or

    ·are a member of the same family unit as such a person and that person holds a protection visa of the same class (per s 36(2)(b) or (c)).

    Refugee criterion

    [2] The key provisions are extracted and annexed as an Attachment to this Statement of Decision.

11. 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) of the Act.

12. The meaning of ‘well-founded fear of persecution’ is expounded in s 5J of the Act.

13. 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: s 5J(1)(a); and

    ·there is a real chance they would be persecuted for one or more of those reasons: s 5J(1)(b); and

    ·the real chance of persecution relates to all areas of the relevant country: s 5J(1)(c).

14. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a), then the reason(s) must be the essential and significant reason(s) for the persecution: s 5J(4)(a).[3] Further, the persecution must involve:

    ·serious harm to the person: s 5J(4)(b); and

    ·systematic and discriminatory conduct: s 5J(4)(c).

    [3] That is: race, religion, nationality, membership of a particular social group, or political opinion.

15. A non-exhaustive list of instances of ‘serious harm’ is set out at ss 5J(5)(a) and (f). The list includes a threat to a person’s life, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person’s capacity to subsist, the denial of basic services,[4] and the denial of the capacity to earn a livelihood of any kind.[5]

    Complementary protection criterion

    [4] Where the denial threatens the person’s capacity to subsist.

    [5] As above, where the denial threatens the person’s capacity to subsist.

16. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.

17. 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).

18. Pursuant to s 36(2A), a person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

19. Pursuant to s 36(2B), there is taken not to be a real risk that an applicant will suffer significant harm in a country if:

    ·it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; or

    ·the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or

    ·the real risk is one faced by the population of the country generally and is not faced by the applicant personally.

    Mandatory considerations

20. Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Relevantly, Ministerial Direction No.84 (MD 84), made under s 499 of the Act, concerns the consideration of protection visa applications.

21. In accordance with MD 84, I am required to take account of the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’, prepared by the Department. These materials contain an analysis of the law, examples of how the law has been applied in various jurisdictions and guidelines to decision makers on how the law is to be applied.

22. I am also required to consider country information reports prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for assessing protection status claims. In this case, I have taken account of the following publications:

    ·Country Information Report: Fiji published on 20 May 2022 (2022 DFAT Report); and

    ·Common Claims: Fiji published on 11 December 2023 (2023 DFAT Report).

    OUTLINE OF EVIDENCE

    Country of nationality

23. The applicant provided the Department with a copy of a Fijian passport issued in his name together with the visa application form lodged in August 2017. He presented the original of that passport to the Tribunal on the day of the hearing.

24. I accept the applicant is a Fijian citizen as claimed on his application. As such, he is to be assessed against Fiji as the country of nationality and the receiving country for the purposes of the Act.

    The applicant’s personal background

25. Based on the answers given by the applicant on the visa application form, and confirmed to me at the hearing, I accept the following information as true and correct about his personal background:

    ·He was born in [location] on [named] Island in [year].

    ·[From] 1989 [till] 2001, he was in the active military service ([specified unit]), held the rank of [specified rank] and participated in UN peacekeeping missions in [Country 1] and [Country 2].

    ·[From] 2005 [till] 2006, he worked as a [Occupation 1] in [Country 3].

    ·[From] 2008 [till] 2009 and [from] 2016 [till] 2017, he once more was involved with the UN peacekeeping force in [Country 1].

    ·He was [an] officer of the [specified unit] stationed in [location]. In this role, he was assisting with [specified task] in rural Fiji.

    ·From 1982 till July 2017, he was residing in [Neighbourhood 1].

    ·[In] May 2017, the applicant married his second wife with whom he had been in a relationship from 2006.

26. I asked the applicant about his family relationships and composition at the hearing. I accept the following evidence as true and correct:

    ·His parents are deceased.

    ·He has [number] siblings all of whom live in Fiji.

    ·He has been married twice.

    ·He has [number] children from his first marriage. Those children live in Fiji.

    ·He has been living separately from his second wife since 2020.

    ·He has been in a de facto relationship for nearly 4 years with a woman who is a dual citizen of Fiji and Australia.

    The applicant’s travel to Australia to seek protection

27. The applicant first travelled from Fiji to Australia [in] June 2017 but returned within 6 weeks, [in] July 2017. He then came back to Australia 5 days later and has not departed since. I asked the applicant to explain why he went back and forth between Fiji and Australia.

28. He told me that he left Fiji [in] June 2017 in fear of his life, but he returned home for a very short period because one of his daughters fell ill and almost died. He left again for Australia as soon as it became clear that she was going to survive.

29. He said that when he arrived in Sydney, he quickly sought advice about lodging a protection visa application from a community legal centre in [Suburb 1]. He and his wife completed the forms and sent them to the Department in August 2017.

30. The applicant’s claims are as follows:

    ·After returning from his last tour of duty with the UN peacekeeping force [in] 2017, he wanted to take on another deployment with peacekeepers in [Country 2].

    ·He was advised that his name was shortlisted for this mission. He then spent his own money to prepare himself for the next deployment and he passed all the necessary tests.

    ·However, when only a few weeks until the date of deployment remained, he was notified that his name was removed from the list of persons who were going on the mission.

    ·He started enquiring why his name was taken off the list. An officer revealed that there was a lot of corruption taking place in the recruitment office and that other officers managed to get their names placed on the deployment list by paying bribes.

    ·The applicant complained about the removal of his name from the list, and his corruption concerns, directly to the Commander of the Fijian military forces. He met with the Commander in his private office but in the presence of a number of military police officers.

    ·That same night, the military police came to his house. They were armed with guns and in uniform. They ordered that he get into their car and go with them. They tied his hands and legs and assaulted him in the car. They accused him of being arrogant and asked him what he was thinking going straight to the Commander with his complaint.

    ·The military police took the applicant to [Location 1] where they removed him from the vehicle and then bashed him on the ground to such an extent that they expressed concern to each other that they had killed him. They dragged the applicant back into the car and drove to the military camp, where they dumped him on the grass near the front gate. He lay there for several hours until around [time], when the officers untied him and let him go.

    ·When the applicant left the military camp, the officers warned him that if he reported what happened to the authorities, they would come back for him. He went directly home. He was too afraid to go to a hospital for medical treatment.

    ·Over the next few days, the applicant received numerous calls on his mobile phone from private numbers and he was repeatedly threatened to ensure he did not report anything.

    ·The applicant was scared for his life and left for Australia the next week, [in] June 2017.

31. I asked the applicant if he received any further threats or was otherwise the target of any misconduct when he went back to Fiji for 5 days in July 2017. He told me that nothing happened during that period of time because he kept a low profile, staying at home the whole time, but he was constantly in fear of what was going to happen next.

32. I accept the applicant’s evidence about the events which occurred prior to his departure from Fiji, and also when he briefly returned to visit his sick daughter, as outlined above.

    The applicant’s circumstances in Australia

33. I asked the applicant if he remains fearful of being beaten, tortured or killed by the military police in Fiji now that over 7 years have passed since he was bashed by them. He said that he is, in particular because there was a Fijian news article published on the day prior to the Tribunal hearing about the dead body of a person found floating in the river with signs of having been tortured. I asked the applicant how that news was connected to him. He said it was evidence that what happened to him in 2017 is ‘still taking place’ in Fiji but he also acknowledged it did not have anything to do with him personally.[6]

    [6] After the hearing, the applicant provided the Tribunal with a news article published in The Fiji Times on 21 June 2024 to corroborate this evidence. The article refers to a deceased man as having been retrieved from the Rewa River. It does not refer to any injuries found on the man and there is no reported connection between the deceased man and the Fiji military.

34. I asked the applicant whether he had received any threats in Australia. He replied: “none at all”. However, his family reported drive-bys, break-ins and thefts at his house and farm in 2017 and 2018 after he had left Fiji. They suspected the military police were involved.

35. I asked the applicant if he would seek to re-join the military if he went back to Fiji; his answer was a definitive “no”. In such circumstances, I asked him why the military police would still be interested in him. He said that they would have a list of names of the people who had come to Australia, and they would be alerted about his return and make plans to torture or kill him. Again, I asked why. He replied: “because of speaking up and speaking the truth”.

36. I clarified if the applicant had been outspoken in Australia about what happened to him, and whether that would be an issue for him in Fiji. He said that he had made comments on [social media] when he first arrived. When I asked him if he could find those comments and show them to me, he said it was not possible because he had forgotten the password to [social media] and had changed accounts. The applicant did not give me the impression that his [social media] comments were prolific or persistent and without being shown the contents, the timing, nor the context of those comments, I cannot be satisfied that they would form a basis for raising the applicant’s profile in Fiji as someone who ‘speaks up’.

37. I asked the applicant if he would pursue a corruption complaint, or report the 2017 beating, if he returned to Fiji. He initially told me that he would, but then reflected that it could be dangerous to do so, and he had his children to consider, and ultimately answered: “I would be silent”.

38. The applicant invited me to consider a small number of media articles about:

    ·a ‘clean up’ of Fiji’s military in February 2007; and

    ·the prosecution and imprisonment of Fiji’s former Prime Minister in May 2024,

    and additionally told me about some news that he read on his way to the Tribunal hearing which concerned a potential change in government leadership in Fiji.

39. I indicated to the applicant that I could not understand the connection between the Fijian news that he wanted me to take into account and the protection claims that he has made. His explanation was somewhat confusing but, in effect, he wanted me to know that the same corrupt officers are still in the military, plus the government is unstable, and he therefore fears that he cannot be protected by the police or the military if he goes back to Fiji.

40. After the hearing, the applicant emailed to the Tribunal a document entitled “Immigration Support Letter” to be considered as part of his case. It is a letter written by the applicant’s current de facto partner. It vouches for their relationship, the applicant’s hardworking nature and his dedication to family, community, and service. It does not contain any information which relates to his protection claims. I do not find the letter to be relevant to this case.

41. I accept the applicant’s evidence that he is fearful of being harmed again by military officers if he returns to Fiji, and that the authorities will not be able to protect him in such a scenario. I also find as follows:

    ·the applicant has not received any threats since coming to Australia in 2017;

    ·there have not been any incidents at his home or farm in Fiji since 2018;

    ·he has not been publicly outspoken about his assault or corruption in the Fijian military since coming to Australia;

    ·he will not attempt to re-join the military in Fiji if he returns; and

    ·he will not seek to agitate a complaint against the military officers in Fiji if he returns.

    CONSIDERATION OF CLAIMS AND ELIGIBILITY FOR THE VISA

42. The applicant’s case at the hearing was consistent with the claims he made in his visa application lodged in August 2017. That is, he was severely beaten by military officers after having reported corrupt practices to a Commander, he received threats thereafter, and so he chose to seek protection and safety in Australia. He is fearful that he will be beaten again, or possibly killed, by military officers if he returns to Fiji.

43. The applicant has lived and worked in Australia continuously for around 7 years. On his own evidence, no one has threatened him in Australia and nothing untoward has occurred at his family home or farm in Fiji since 2018. He has kept an unassuming profile all this time, and he does not intend to attempt to go back to military service in Fiji, or otherwise lodge a complaint against the military officers if he returns.

44. He has provided evidence about ongoing violence and corruption and instability in Fiji insofar as the authorities are concerned. I do not doubt that evidence and, indeed, it is consistent with the country information supplied to me via the DFAT Reports.[7]

    [7] For example, see the 2022 DFAT Report at page 23 (under the heading ‘Police Violence’) and the 2023 DFAT Report at page 27 (under the heading ‘Police’).

1. But the applicant’s explanation as to why he would remain the target of the military officers, 7 years on, was entirely unconvincing. He asserted that they would be alerted to his return from Australia to Fiji and then make plans to harm him, upon receiving that information. Even if I give the applicant the benefit of the doubt, and I accept the military authorities would be notified of his homecoming, the reality is that he has done precisely what was asked of him by the officers who bashed him; namely, he did not pursue the corruption allegations and he did not report what he described as a near-fatal beating at their hands. Rather, he left the country and stayed away for several years. Furthermore, he is not going to give them a reason to be interested in or concerned about him upon return. He will not resume his military career, such that he will not need to interact with any military officers like he used to, and he will be ‘keeping silent’ about the events of 2017. He would return as an ordinary civilian and lead an ‘ordinary’ life.

2. As noted above, in order for the applicant to meet the refugee criterion, I must be satisfied (among other matters) that there is a ‘real chance’ that he would be persecuted if he returns to Fiji. Without seeking to discount the trauma or diminish the maltreatment suffered by the applicant in the past, the sum effect of the evidence in this case is that I am simply not satisfied that he faces any real chance of being seriously harmed if he returns to Fiji in the reasonably foreseeable future.

3. Meanwhile, in order to be entitled to complementary protection, there have to be substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a ‘real risk’ that he will suffer significant harm. The assessment of ‘real risk’ uses the same test as the ‘real chance’ test.[8] Accordingly, on the same basis that I am not satisfied the applicant faces a ‘real chance’ of persecution, I am also not satisfied that there is a ‘real risk’ he will suffer significant harm if he returns to Fiji.

   [8] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [242]–[247].

4. It follows that I determine the applicant is not a person in respect of whom Australia has protection obligations pursuant to either of s 36(2)(a) or s 36(2)(aa) of the Act.

5. There is also 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.

6. For these reasons, I find that the applicant is not eligible for a protection visa.

   DECISION

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

   Jessica Edis
   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.

   …