1916845 (Refugee)

[2024] AATA 4316

1916845 (Refugee) [2024] AATA 4316 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1916845

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Samira Kamandi

DATE:25 September 2024

PLACE OF DECISION:  Perth

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

Statement made on 25 September 2024 at 2:50pm

CATCHWORDS

REFUGEE – Protection Visa – Malaysia – a registered police informer – new claim – harassed by the police – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant was born in [year] in Perak, Malaysia, and is a national of Malaysia. He is of Malay ethnicity and Muslim faith.

2. The applicant was granted a UD-601 Electronic Travel Authority visa and arrived in Australia on [date] March 2019.

3. He applied for a protection visa on 31 March 2019. On 24 June 2019, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

4. On 25 June 2019, the applicant applied for a review of the delegate’s decision to refuse to grant him a protection visa. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

5. In his protection visa application, the applicant claims that he was in a very bad financial situation in Malaysia and had difficulties securing a permanent job due to the economy and that employers were asking for a ‘university certificate’ which he does not have. He refers to his [age]-year-old daughter and states that based on his research about Australia, he concluded that working in Australia would allow him to support his family and daughter.

6. The applicant claims that if returned to Malaysia, he will not be able to support his family and pay for his daughter’s education.

7. The applicant’s protection visa application indicates that he has not been arrested nor convicted of an offence in any country.

   The delegate’s decision

8. The applicant was not interviewed by the Department in relation to his claims. The delegate found that the economic climate in Malaysia affected everyone in the country and that the economic hardship that the applicant may suffer did not amount to serious or significant harm. The delegate refused the applicant’s protection visa application on 24 June 2019.

   Review application

9. On 25 June 2019, the applicant lodged a review application with the Tribunal. Apart from providing the Tribunal with a copy of the delegate’s decision, the applicant did not provide any further evidence or information in support of his claims for protection or in response to the refusal of his protection visa application.

10. On 26 July 2024, the Tribunal emailed the applicant indicating that his review application was being prepared to be given to a Tribunal Member and that information was being sought to assist the Member in conducting the review. The email asked the applicant to complete a form which sought updated information regarding his contact details and claims for protection. The applicant did not respond.

11. On 15 August 2024, the applicant was invited to a hearing before the Tribunal. The hearing invitation indicated that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone and invited the applicant to appear before the Tribunal on 10 September 2024.

12. The applicant was requested to read and complete the response to hearing invitation form and return it to the Tribunal within 7 days. The form allowed the applicant with a further opportunity to provide any further information, such as written statements and submissions, country information or other documents, that he intended to rely upon before the Tribunal. The applicant did not respond to the invitation. 

13. On 9 September 2024, the applicant attended the Tribunal’s Perth registry and was advised that the hearing was scheduled for the next day. He informed the Tribunal that his contact details had changed and that was the reason that he did not respond to the hearing invitation. He provided the Tribunal with his new contact details and indicated that he will be attending the hearing scheduled on 10 September 2024 and did not require the assistance of an interpreter.

14. The applicant attended the scheduled hearing on 10 September 2024 at the Tribunal’s Perth Registry. The applicant was not represented and confirmed that he did not require an interpreter. The applicant was informed that if at any time he had any difficulties understanding the questions or information discussed at the hearing, that he sought clarification or request for the information to be repeated or reworded. The applicant confirmed that he understood and did not raise any issues during the hearing.

15. At the commencement of the hearing, the applicant stated that he had been diagnosed with [Medical condition 1] and was feeling fatigued. I indicated that I needed to know if he was able to continue with the hearing which was an important event in the process of his protection visa application. The applicant confirmed that he was willing and able to continue and that he just wanted me to know of his condition. I informed him that if at any time he needed a break or needed the hearing to be adjourned to let me know. The applicant expressed his understanding. While the applicant did not ask for any breaks during the hearing, I did offer him opportunities to take a break, including to reflect on what was discussed and think about whether he could provide any further information in support of his review application. The applicant declined expressing that he wanted to continue with the hearing.   

16. The applicant was able to respond to my questions and present his evidence during the hearing. I am satisfied that the applicant had the capacity to participate at the hearing and was given a real and meaningful opportunity to engage in the process. Where relevant, the applicant’s evidence given at the hearing is referred to in my consideration of his claims set out below.

17. At the commencement of the hearing, I also explained the purpose of the hearing and the criteria for the grant of a protection visa. I expressed that I would be discussing any concerns or issues that I may have with the applicant’s claims or evidence with him and that the purpose of this was to allow him to understand the issues and provide his responses and any further information that he wished for me to take into consideration. The applicant expressed his understanding of these matters and indicated that he had no questions in this regard.

    CRITERIA FOR A PROTECTION VISA

18. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

19. 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.

20. 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).

21. 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 5K-LA, which are extracted in the attachment to this decision.

22. 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

23. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Malaysia for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.

25. For the following reasons, I have decided to affirm the decision under review.

    Analysis, findings and reasons

26. The applicant has consistently claimed that he was born in Perak, Malaysia and that he is a national of Malaysia. I accept that the applicant is a national of Malaysia, and that Malaysia is the receiving country for the purposes of this assessment.

27. At the hearing, the applicant confirmed, and I accept, that he is of Malay ethnicity and a Muslim.

28. Regarding his circumstances in Malaysia, the applicant stated that he completed high school which was taught in English and Malay. He explained that the school he attended, [name], was an independent school and that his parents had to pay a fee that was slightly higher than the fee for the local government school. He confirmed that he completed high school in 2006 and stated that while he enrolled in university, he did not complete any courses due to bad grades.

29. The applicant stated that he started working in 2006 and that he was continuously employed on a full-time basis for a period of 13 years until his departure for Australia in 2019. He explained that he primarily worked in [an] [industry]. The applicant stated that while he primarily worked in Perak, he also lived and worked in Kuala Lumpur between the ages of [age] and [age], where he rented a place close to work.

30. At the hearing, consistent with the information in his protection visa application, the applicant confirmed that apart from the period during which he worked and resided in Kuala Lumpur, he lived with his mother in Perak while residing in Malaysia. He stated that his parents are divorced and that his mother owns the house where she continues to reside.

31. When asked about his marital status, the applicant stated that he married a girl from Kuala Lumpur when he was [age] years old. They divorced a year later and that he has a daughter from that marriage. He stated that his daughter is [age] years of age and resides with his mother in Perak. He has had no contact with his ex-wife, which he considered a good thing. The applicant confirmed that he supports his mother and daughter financially and that his daughter attends the same school he attended in Perak.

32. In noting that his protection visa application indicates that he married in June 2015, the applicant said that was his second marriage and that after 6 months, his wife ‘disappeared’ and he has not heard from her. When asked about the status of his marriage, the applicant said that his wife filed for a divorce and that he is ‘technically’ divorced.

33. While I accept the applicant’s evidence about his education, employment, and family circumstances in Malaysia prior to his departure in 2019, as discussed below, I have concerns about the credibility of the applicant’s evidence and newly raised claims at the hearing. 

34. At the hearing, the applicant stated that he completed and lodged his protection visa application himself and had no assistance in this regard. He explained that he came to Australia for a holiday and had every intention to return to Malaysia before the expiry of his 3-month visitor visa. However, after a month, the applicant said that he decided to remain in Australia. When asked about his reasons for wanting to remain in Australia the applicant said, ‘inner peace’, the culture, the weather, and ‘no harassment’. He stated that after applying for a protection visa, he obtained work rights, and that he has been working with various companies in construction which has allowed him to send money to his family in Malaysia.

35. While in his protection visa application, the applicant has made claims that he came to Australia due to his ‘bad financial’ situation, inability to obtain roles because of his lack of a university qualification, and that his research about Australia led him to conclude that he could earn more money in Australia and better support his family, at the hearing the applicant introduced a further element to his claims.

36. While presented in a very vague and at times evasive manner, the applicant essentially claimed that in Malaysia he was a registered police informer because he worked as [occupation] and knew how people stole cars. He claimed that when he did not provide the police information every week, he was harassed by the police. In response to my questions to seek clarification about his claims, the applicant gave confusing answers. While he said that he was a registered police informer and has ‘the papers and an identity card’, he also said that the police were trying to recruit him. He made references to the corruption within the police in Malaysia and then claimed that the police framed him by planting drugs at his home, and that he was convicted and imprisoned for 5 months about a year before he came to Australia.  When asked about what happened after his release from prison, the applicant vaguely referred to having given the police another 2 or 3 cases and then said that because of his conviction he was unable to secure employment. When referred to his earlier evidence that he was continuously employed until his departure for Australia, the applicant did not offer an explanation and maintained that he had to tell employers that he had a conviction and therefore was unable to secure employment. 

37. I noted that the applicant’s protection visa application, which he states he completed, indicates that he has never been arrested nor convicted of any crimes. The applicant did not offer an explanation. In response to my question about the reasons for his failure to include the information he was presenting at the hearing in his protection visa application, the applicant stated that he did not know what to include and that he is confused and made references to his health issues.

38. When asked if he had the documentation to support that he was a police informer, noting that he said he was a registered police informer and had ‘the papers’, or any documents relating to his conviction and sentencing, the applicant stated that he did and then said that he did not know he had to provide such information. When pressed, the applicant continued to maintain that the reason he did not include this information in his protection visa application and does not have documents in support is because he did not know what to do, what was required, and that he had a bad life in Malaysia.

39. As expressed at the hearing, I found the applicant’s evidence in this regard problematic. I explained that on one hand he is claiming that he was a registered police informer and on the other hand he is claiming that the police were trying to recruit him and that he was framed and charged for drug possession by the police. I also indicated that given the applicant’s education, English language ability, and that he had researched the Australian employment market in Malaysia and how to apply for a protection visa in Australia, I found it difficult to accept that if he was harassed by the police and falsely convicted of a crime which  hindered his ability to obtain employment in Malaysia, that he would not have included that information in his protection visa application. I also expressed that his protection visa application was refused in June 2019, over 5 years ago, and expressed concern that he did not provide this information when lodging his review application with the Tribunal or during the 5 years that his review application remained active before the Tribunal, noting that he was invited to provide further evidence in support of his claims. The applicant stated that he could not provide any proof and did not offer any explanation to alleviate my concerns about the credibility of the newly raised claims at the hearing.

40. Considering the vague, evasive, and at times circular nature of the applicant’s evidence at the hearing, his inability to explain the reasons for failing to include this information in his protection visa application or to provide it to the Tribunal in the 5 years after the refusal of his protection visa application, and lack of any supporting evidence, I do not accept that the applicant was a registered police informer in Malaysia, that he was harassed by the police, or that he was framed by the police and imprisoned as claimed.

41. As expressed in his protection visa application, I accept that the applicant researched the employment market in Australia in Malaysia and concluded that he was able to earn more money in Australia and decided to come to Australia. I do not accept that the applicant had any intention of returning to Malaysia prior to expiry of his visitor visa and consider it is more likely, that he knew of the process of applying for a protection visa and that lodging such an application would give him work rights and prolong his stay in Australia.

42. As discussed with the applicant at the hearing, the 2024 DFAT report[1] indicates that the World Bank has classified Malaysia as an upper-middle-income economy; the country’s strong economic performance over the last few decades has led to a significant reduction in poverty; data from April 2023 indicates that Malaysia’s unemployment rate is around 3.4 per cent; and that there are labour shortages in many sectors. I explained that this information indicates that Malaysia’s unemployment rate is relatively low, and given the applicant’s education, past employment history in Malaysia and his experience in the construction industry in Australia, it did not appear to me that he will not find any employment to support himself or his family. Apart from referring to matters discussed above, which I do not accept, the applicant did not offer any other reasons about his conclusions that he may not be able to secure employment.

    [1] DFAT, ‘DFAT Country Information Report – Malaysia’, 24 June 2024.

1. I note that the applicant claims that he suffers from [a medical condition]. At the hearing the applicant said that he was diagnosed with [Medical condition 1] in Malaysia where he was operated on and that he went into remission. While he has provided no documentary evidence about his condition, he stated that he has been feeling sick since early 2024 and has seen doctors and been referred for treatment. Despite the lack of any supporting evidence, I am willing to accept that the applicant has been diagnosed with [Medical condition 1], that he was operated on in Malaysia, and that he went into remission. I accept that he has been referred for treatment in Australia. However, as noted at the hearing, on the applicant’s evidence he was diagnosed and treated in Malaysia. Despite his diagnosis, the applicant’s evidence is that he was able to continue to work and he has not claimed that he faced any issues accessing health care or that his condition prevented him from supporting himself and his family. I also note the applicant’s evidence that despite seeking treatment in Australia he has continued to maintain his employment and he has not provided any evidence to indicate that he is unable to work due to his health conditions. The applicant has not claimed, and on the evidence before me, I am not satisfied that the applicant will be prevented from accessing/securing employment due to his health conditions or that he faces a real chance of any harm for this reason, if returned to Malaysia now or in the reasonably foreseeable future. 

2. While I acknowledge that the applicant has been living and working in Australia for several years and that he may face some initial challenges in resettling in Malaysia and securing employment, I am not satisfied that any such challenges amount to serious harm. I note that the applicant’s mother, siblings, and daughter reside in Perak. His mother owns and continues to reside in the house where the applicant resided while in Perak. The applicant has not claimed that he will not have the support of his mother or would face any issues in finding accommodation. I am not satisfied that any challenges, economic or otherwise, that the applicant may face if returned to Malaysia, now or in the reasonably foreseeable future, amount to serious harm.

3. Considering the applicant’s circumstances, as a whole and in light of what I have accepted of his claims, I am not satisfied that the applicant faces a real chance of persecution in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act.

4. The applicant does not meet the requirements of the definition of refugee in s 5H(1). The applicant does not meet s 36(2)(a).

5. Considering the discussion above, I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he would face any issues or treatment that would involve significant harm as defined in the Act. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

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

   DECISION

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

   Samira Kamandi
   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.

   …