1905883 (Refugee)

[2022] AATA 4083

1905883 (Refugee) [2022] AATA 4083 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905883

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Nora Lamont

DATE:30 September 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 30 September 2022 at 11:41am

CATCHWORDS

REFUGEE – Protection visa – Fiji – an indigenous Fijian who no longer has the right to her land – psychological stress and depression – political uncle – concerns about finding a job does not amount to serious or significant harm – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 February 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 Fiji, applied for the visa on 30 July 2018.

3. The applicant appeared before the Tribunal on 29 September 2022 to give evidence and present arguments. The Tribunal also took evidence from the applicant’s sister. The applicant’s sister is a citizen and spoke to the Tribunal about her sister’s depression and how she won’t be able to work if she returns to Fiji.

4. The applicant was not represented in relation to her review.

5. The applicant was not granted an interview by the Department and an assessment on the papers was given with the delegate finding that the applicant is not a refugee as defined in the relevant criteria in the Migration Act.

6. Based on copies of the applicant’s passport, which was provided to the Department, the applicant’s oral and written evidence, and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Fiji and has assessed her claims against that country in relation to s 36(2)(aa) of the Act.

7. There is nothing before the Tribunal to indicate the applicant has the right to enter and reside in any safe third country for purposes of s 36(3) of the Act.

8. There are no non-disclosure certificates on the applicant’s file.

   Criteria for a protection visa

9. 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.

10. 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.

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).  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).

12. 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.

13. 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

14. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF Claims and evidence

15. The applicant’s migration history is as follows:

    ·[Date] Feb 1986         First arrived in Australia on UA-H16 visa

    ·[Date] July 1991         Departed from Australia (Supervised departure)

    ·23 Dec 1999   Granted Short Stay - Tourist (OFFSHORE) (TR 676) single entry

    ·[Date] Dec 1999         Arrived to Australia

    ·[Date] Jan 2000         Departed Australia

    ·14 Nov 2003   Granted Short Stay - Tourist (OFFSHORE) (TR 676)

    ·[Date] Nov 2003         Arrived in Australia

    ·[Date]  Dec 2003        Departed Australia

    ·19 May 2008   Granted Tourist (OFFSHORE) (TR 676) single entry 3 months stay

    ·[Date] 2008     Arrived in Australia

    ·[Date] 2008     Departed Australia

    ·23 Oct 2009    Tourist (OFFSHORE) (TR 676) multiple entry one month stay

    ·[Date] 2009     Arrived in Australia

    ·[Date] 2009     Departed Australia

    ·[Date] Nov 2009         Arrived in Australia [Date] Nov 2009 Departed Australia

    ·14 Sep 2012   Granted Tourist (OFFSHORE) (TR 676) multiple entry 24 months

    ·[Date] Sep 2012         Arrived in Australia [Date]  Oct 2012

    ·Departed Australia [Date]  Oct 2014

    ·Tourist Stream (OFFSHORE) (FA 600) granted for 1 year

    ·[Date] Nov 2014         Arrived in Australia

    ·[Date] Jan 2015         Departed Australia

    ·[Date] Feb 2015         Arrived in Australia

    ·[Date] May 2015        Departed Australia

    ·[Date] May 2015        Arrived in Australia

    ·[Date] Aug 2015         Departed Australia

    ·27 Sep 2017   Granted Student

    ·[Date] Sep 2017         Arrived in Australia

    ·30 Jul 2018     Applied for Permanent Protection (XA 866) visa

    ·20 Aug 2018   Granted Bridging Visa C (WC-030) No work condition

    ·10 Sep 2018   Granted an Onshore Bridging Visa C (WC-030) Nil conditions

    Protection Claims

16. The applicant is a single Fijian woman born on [date]. She is currently employed in [a specified field] and has a sister who is a citizen of Australia and a brother who is onshore and has a protection visa application pending.

17. Her claims can be summarised as follows:[1]

    ·The applicant claims to be deprived of freedom of speech; any criticism of the Fijian government will result in arrest and charge.

    ·As an indigenous Fijian she no longer has the right to her land. The current government is forcing her family to give up land to the Land bank authority.

    ·The Fijian government treatment of indigenous Fijians and restrictions on free speech, have caused her psychological stress and depression. Her presence in Australia has improved her health condition. If returned to Fiji, stress and depression will return.

    ·She cannot move to any other part of Fiji because the Government is a threat to her and her family. The country is small, and the military and the government will know her whereabouts.

    ·She is concerned about China and Muslims in Fiji and the military overruling the country.

    ·She is concerned about how Fiji will pay its debts and there is a lack of jobs.

    ·Her mother passed away in 2021 and this makes it worse to go back.

    ·Her nephew was killed in a house fire, and they lost their home.

    [1] AAT Folio & [file number deleted]- 785615536

    Submissions

18. The Tribunal had before it the following submissions and documentation:

    Tribunal File – 1905883

    • Application for Review dated 12 March 2019
    • Department of Home Affairs:  Decision Record dated 11 February 2019
    • Written Statement from the applicant dated 29 March 2019
    • Letter of Recommendation for the applicant from [two named individuals] dated
      14 March 2019
    • Certificate of Appreciation from [an organisation] awarded to the applicant
    • Country Report prepared by Department of Medical Sciences; Fiji National University published on 21 December 2010
    • Article:  Protest of Land Dispute published in The Fiji Times dated 18 December 2018
    • Articles and Instagram messages dated May 2018 to October 2018 relating to Censorship in Fiji after Contested Election
    • Written Submission from the applicant received 23 September 2022
    • Written Statement of Support from [Mr A] dated
      19 September 2022
    • [Social media] ‘Grubsheet’ Post and Articles relating to current affairs in Fiji received

    27 September 2022

    • Articles relating to Mental health care in Fiji published in Fiji Journal of Public Health

    Department File – [deleted]

    • Visa application dated 28 July 2018
    • Written Statement from applicant
    • Identification documents: copy of applicant’s Birth Certificate and Passport
    • Bank Statements dated May 2018 to August 2018

    Country Information

    Mental Health

    The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic, and medication might be unavailable.

    Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the DFAT Country Information Report FIJI May 2022 8 wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility. 2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.

    Military

    The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.

    The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.

    Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.

    Upon expiry of their original enlistment period, RFMF members are transferred to the Reserve until age 55. They can be recalled to service by the President until that age in cases of ‘invasion, war or danger … or by reason of any internal emergency’. DFAT is not aware of any recent examples of this occurring.

    In the unlikely event that a reservist is called up for service, absence from Fiji at the time of being called up would be a reasonable excuse for non-attendance according to section 20 of the Republic of Fiji Military Forces Act 1949. The penalty for refusing service without a reasonable excuse (noting that absence from Fiji is a reasonable excuse) is up to 12 months’ imprisonment or a fine not exceeding FJD 100. DFAT is not aware of any cases of a reservist being imprisoned for being absent for the purposes of making an asylum application outside Fiji or any other absence reason.

    Indigenous Fijians

    Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.

    Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.

    iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.

    Political opinion

    The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[2]

    [2] DFAT Country Information Report Fiji May 2022

    Hearing and Findings

19. The applicant explained she lived in Australia for six years from 1986 until 1991 whilst her father was [studying]. She then came back over multiple times as she has family and friends here. She spoke of working in [a specified field] and how she really enjoys the work.

20. I asked her why she applied for a protection visa in 2017. She said Fiji had just come out of military rule and Fiji has a lot of construction paid for by the Chinese and Fiji had changed so much, there was no freedom of speech, she was afraid to speak up and you cannot go against the government.

21. The applicant didn’t present coherent claims for protection. Her claims were vague and lacking in specificity. None the less I found her to be open and forthright. I understand her claims are more general in nature than specific and that overall, she wishes to remain in Australia and not return to Fiji.

    At the hearing the applicant said that she applied for the visa because they were just coming out of military rule in 2017 and the Chinese were building, and she was concerned about loans from China. She said Fiji had changed a lot and there was no freedom of speech and she feared she would be arrested. She said that there are elections coming up in October and she feared the Chinese influence, along with Muslim influence from Saudi Arabia and Russia. Fiji, however, leads the UN Human Rights Body despite opposition from Russia, China and Saudi Arabia.[3] However, I could not find exact figures for how much these countries loaned or spent in Fiji. I did find the following: Fiji owes $924 million to the Asian Development Bank, revealed the 2020-2021 annual debt report released by the Ministry of Economy this week. The report said Fiji had an external debt of $2.4 billion, out of which 38.5 per cent was owed to the ADB.[4]

    [3] Fiji Will Lead U.N. Rights Body, Over Russian and Chinese Opposition - The New York Times (nytimes.com)

    [4] Sunday Fiji Bulletin 16 October 2021

22. Her Uncle was in Parliament and he was a critic of Frank Bainimarama and he had to flee to Australia. She has ties to her uncle, who has charges against him. I have looked up [Mr A] and found that he was suspended as an [MP]. [5] He was later acquitted of these charges.[6]  In another case he was found guilty of [details deleted].[7]   Whilst I accept that the applicant is related to  [Mr A] and have regard for the letter he sent in support of her, there is nothing before me that indicates the applicant has any political profile or that anyone would know she is related to Mr [A]. I do not accept that the applicant’s imputed political opinion due to her uncle would impact her upon return to Fiji.

    [5] [Source deleted]

    [6] [Source deleted]

    [7] [Source deleted]

23. The applicant claims her house caught on fire and her nephew died in the fire. The house was a total loss, and the applicant went into a depression. I accept these claims. In relation to her depression, she stated she had seen a counsellor in 2018 but she provided no evidence that she has had any ongoing therapy or treatment since being in Australia yet claims she will not be provided with adequate mental health treatment upon return to Fiji. As she has not engaged in ongoing treatment in Australia, I do not accept that she would seek out mental health treatment in Fiji and or she would be unable to access it upon return. I accept that mental health facilities and programs are rare in Fiji as DFAT above reports, however, given she has not accessed services to a great extent in Australia I do not accept she would seek them out upon return.

24. The applicant claimed there was a land dispute after the house fire.  At the hearing she stated they had to move as there was no house to live in anymore. She said that the house was in the ownership of the village chief, and they couldn’t contest the land. I accept that the property was not owned by the applicant’s family and as such they did not have a claim to this land.

25. She said her father still lives In Fiji and her sister and brother support him. They want him to come for Christmas but fear he will be blacklisted due to her uncle. She also said they tried a business for her father selling crops overseas but there were blockages to the business, and she says it was because of her uncle. Again, there is nothing before me to indicate that her or her family members have any profile with the government in Fiji. I could find no articles or any sources online to indicate the applicant or her family have been targeted due to her uncle.

1. I asked the applicant if she could relocate upon return to Fiji. She said no because of her uncle. Given my reasoning above I do not accept that the applicant cannot relocate upon return to Fiji.

2. The applicant claims that indigenous rights are being compromised in Fiji. She said in general that Muslims and leaders run the superannuation programs, the military and the electricity. Current country information does not indicate that indigenous Fijians are losing their rights due to Muslims, China, Saudi Arabia or Russia.[8]

   [8] DFAT Country Information Report Fiji May 2022

   Conclusion

3. The issue in this case is whether Australia has protection obligations in respect of the applicant. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

4. I find that the applicant does not face a real chance of serious harm on return to Fiji as the niece of her political uncle or for any other reason. I am not satisfied that the applicant has a well-founded fear of persecution as required by s 5J of the Act and therefore I find the applicant is not a refugee within the meaning of s 5H.

5. At the hearing the applicant expressed her fear of not being able to get a job in Fiji. I accept her claim in this regard and her concerns about finding employment upon return to Fiji. However, concerns about finding a job does not amount to serious or significant harm as defined in the relevant legislation above.

6. For these reasons, I find the applicant does not face a real chance of persecution for any reason on return to Fiji.

7. Nor do I accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm from the Fijian authorities, or their associates. I accept the applicant may have difficulty obtaining employment, but I am not satisfied this constitutes significant harm. I am therefore not satisfied that the applicant meets the alternative provisions in s 36(2)(aa).

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

   decision

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

   Nora Lamont
   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.

   …