2008984 (Refugee)

[2021] AATA 517

2008984 (Refugee) [2021] AATA 517 (20 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008984

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:20 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 January 2021 at 3:57pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – fear of harm from loan shark ­– work in Australia to settle her debt – economic situation in Malaysia – credibility concerns –decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 423, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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 27 May 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 17 January 2020. The delegate refused to grant the visa on the basis that she was not satisfied the applicant was a person to whom Australia owed protection.

3. The applicant appeared before the Tribunal on 27 November 2020 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Malay and English languages. At the conclusion of the hearing the Tribunal adjourned for 14 days to allow the applicant an opportunity to submit documents in support of her claims. Further documents and submissions were received by the Tribunal on 7 December 2020.

   CRITERIA FOR A PROTECTION VISA

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

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

8. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times stated that she is a citizen of Malaysia and she has been assessed on that basis by the Department. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the receiving country.

    The applicant’s personal background

12. The applicant is a [age]-year-old female from [Sarawak], Malaysia. At hearing she stated she was one of ten siblings, three of whom were older than her and six of whom are still in school. The younger children are her step-siblings from her father’s second marriage. Her parents are separated but both remain living in Sarawak.

13. She finished high school at age [age] in [year]. After that she worked at a [workplace]. She also worked at [another workplace] undertaking [specific duties] for several months.

14. The applicant arrived in Australia [in] November 2019 as the holder of a visitor visa.

15. I accept each of the above matters to be true.

    The applicant’s claims for protection

16. In her protection visa application, the applicant stated that she left Malaysia because the country’s economy was getting worse. She stated her salary was not enough and she had nothing left after paying for groceries, car fuel and rent. She said she had student loans that she needed to settle which could severely affect her credit in the long run. She stated she was depressed but had to stay motivated for her parents. She claimed that if she returned to Malaysia she would be in a worse condition because she does not have any savings and she borrowed money from friends to come to Australia in the hope that she could improve her financial position.

17. At hearing the applicant gave a different reason for leaving Malaysia and seeking protection in Australia. She said that she left Malaysia because she had taken out a loan of 5000 ringgit from loan sharks in 2017 to start a business. She claimed the loan sharks threatened her family when she was unable to repay the loan.

18. When I discussed with her that she had not suggested she borrowed money from loan sharks in her protection visa application, the applicant agreed but stated that this was the real reason she applied for protection. When I asked her why she had not mentioned these events in her protection visa application, the applicant said she did not have a clue about what she should write and she was also a bit embarrassed. Later she stated she had not mentioned it in her visa application because there was no threat of harm at the time she left Malaysia, as it was only after she came to Australia that the loan sharks started to threaten the applicant and her mother. She stated she came to Australia to earn money to pay back the loan sharks and never thought of including this matter in her visa application.

19. The applicant gave evidence that she was continuing to make payments to the loan sharks in Australia but was yet to complete full payment, stating she now owed 20,000 ringgit and made repayments of $600 per month through her mother. She said the loan sharks had given her a year or two to settle the debt.

20. The applicant gave evidence that she reported the matter to the Malaysian police, but they did not take any action. She later clarified that it was in fact her mother who reported the matter to the police in March 2020 after people came to the house to threaten her. She gave evidence that she may be able to get documentary evidence of the police report and the payments to the loan shark from her mother in Malaysia and at the end of the hearing I adjourned the review to allow her an opportunity to do so.

21. Following the hearing the applicant submitted a number of documents to the Tribunal in support of her protection claims:

    ·A document titled ‘Letter of Case’ in which the applicant states in summary that she borrowed money from a money lender to start a business [and] to be guarantor for the family [car]. In 2018 her business collapsed and she was unable to pay her debt, her student loan and the rent on the family house causing her to suffer depression and mental breakdown. She applied for and was granted a visa but didn’t have enough money to buy the ticket, so her mother asked for help from family members. After arriving in Melbourne, the loan shark started looking for her at the family house, telling her family they would take the family car if the debt was not paid. Her family would not let the car go as it is their only car. She has suffered since that day because they have harmed her family and she has been informed that the loan shark will kill her once her meets her. She does not feel safe from the loan shark still looking for her and her family is in danger if she doesn’t pay. She hopes she can work in Australia to settle her debt and seeks protection;

    ·An untranslated document saved under the title ‘Certificate Car’ which relating to a [car];

    ·A tenancy agreement between the applicant and her landlord for a dwelling in [Sarawak] commencing [December] 2018 with a monthly rental of RM800;

    ·Two internet banking receipts dated 1 and 31 November 2020 for transfers in the amount of RM800 to [a named person] for ‘rental’ stated to be payment for house rental for October and November 2020;

    ·An untranslated statement from Tabung Pendidikang dated 4 December 2020 relating to the applicant’s student loan with a balance of RM11,300.54;

    ·A statement of bank loans from [a bank] for an Express Cash loan with an outstanding balance of RM4247.30 as at [December] 2020;

    ·An untranslated police report dated 3 December 2020;

    ·A screen shot of a document saved under the heading ‘Payment for loan October – loan shark’. That document is a receipt from [Financial institution 1] and shows a payment of 260 Malaysian ringgit from the applicant on 27 October 2020. It records the loan amount is 2,500 RMB;

    ·A copy of a handwritten note saved as ‘Payment for Money Lender’ stating:

    [Applicant] Total = 2400

    2/11/19 = 150

    14/2/20 = 200

    18/3/20 = 200

    18/5/20 = 100

    2/7/20 = 100

    2/10/20 = 200

    28/11/20 = 200

    Fear of harm from loan shark

22. As discussed with the applicant at hearing, I have serious concerns about the credibility of her claims that she left Malaysia because she borrowed money from a money lender. Despite her evidence at hearing that this was the reason she left Malaysia and came to Australia, she did not make that claim in her protection visa application and as a result it was not considered by the delegate.

23. Section 423A of the Act sets out that where an applicant raises a claim before the Tribunal that was not raised in the application before the primary decision maker, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence unless satisfied the applicant has a reasonable explanation for not raising that claim earlier.

24. I have considered the applicant’s explanations as to why she did not make these claims earlier, being that she did not know what to write in her visa application and she was a bit embarrassed. I accept the applicant may be a bit embarrassed about her financial situation, however she made reference to her debts and financial situation in her protection visa application without suggesting those debts were owed to loan sharks. I do not accept that to be a reasonable explanation for not raising her claims earlier.

25. I have other concerns about the credibility of the applicant’s claims. I note that the visa application required the applicant to answer specific questions asking her why she had left Malaysia and what she feared would happen if she returned. The applicant failed to mention her claimed experiences with and fear of loan sharks in her responses to those direct questions, even though she now claims this to be the reason she left Malaysia. She went on to state in her visa application that she had not experienced harm in Malaysia and did not think she would be harmed or mistreated if she returned. When I raised this with her at hearing, she stated this was because the threats had only started after she left Malaysia and arrived in Australia and she had not experienced harm at the time she made the visa application. I consider this to be inconsistent with her earlier evidence that she intended to remain in Australia at the time she arrived here because she had taken a loan from loan sharks and her family was threatened because of her inability to repay that loan.

26. I have considered the documents submitted after the hearing but I note they contradict the applicant’s evidence at hearing in significant respects. At hearing the applicant gave evidence that she had been repaying the loan shark in Malaysia via payments to her mother at the rate of $600 per month, but the two documents said to be receipts from the loan shark show different and lower payment arrangements.

27. In any case I do not accept either of those documents to be receipts from a loan shark. The document saved under the heading ‘Payment for loan October – loan shark’ is an official receipt from [Financial institution 1] showing their business address in the commercial centre of [Sarawak]. It records a loan number and a transaction number and shows a payment for RM260 [in] October 2020, which is inconsistent with the applicant’s evidence that she has been paying AU$600 per month to the loan shark. While I accept the applicant has borrowed RM2,500 from that institution and is repaying that loan, I do not accept [Financial institution 1] is an illegal money lender or loan shark rather than a legal financial institution.

28. In relation to the document to the brief handwritten note saved as ‘Payment for Money Lender’, I note that there is no evidence before me as to who authored that document, nor does it record who made the payments or who received them. The purported payments recorded in that note are for variable sums some months apart and in each case far lower than the AU$600 monthly sums referred to in the applicant’s evidence. I do not accept that document to be a receipt for payments made to the loan shark as claimed.

29. Finally the applicant’s evidence at hearing was that her mother reported the threats against her by the loan shark to the police in March 2020. However the police report submitted to the Tribunal is dated 3 December 2020, one week after the Tribunal hearing and nine months after the applicant claims the report was made to the police. Although the police report is not translated, I am satisfied the date of the document is 3 December 2020 and not 12 March 2020 because another date appearing later in the document (27/12/[year]) demonstrates that the format of the dates in the document is dd/mm/yyyy). While I accept the police report may be a genuine document, I do not accept the applicant’s mother sought help from the Malaysian police in March 2020 as claimed by the applicant at hearing. Rather I consider this report to the police was made only after the Tribunal hearing and that causes me to further doubt the truthfulness of the applicant’s claims.

30. For all of the above reasons I do not accept the applicant borrowed money from a loan shark to start a business before travelling to Australia, nor do I accept she has any genuine fear of harm on this basis. It follows that I do not accept there to be a real chance the applicant will face harm from loan sharks if she returns to Malaysia, now or in the foreseeable future.

31. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] For the same reasons I do not accept there to be a real risk the applicant will be subjected to significant harm from loan sharks as a necessary and foreseeable consequence of being returned to Malaysia.

    [1] MIAC v SZQRB [2013] FCAFC 33.

32. I accept the applicant’s evidence that she has debts in Malaysia including a student debt, a debt relating to the family’s [car] and debts to financial institutions [Bank 1] and [Financial institution 1]. I further accept she is named on the tenancy agreement for the family home in in [Sarawak]. I accept her evidence that she remains responsible for repaying these debts and that she has continued to make repayments since she has been in Australia. The applicant does not suggest, and the Tribunal does not accept, that those institutions will seek to harm her on account of those debts if she returns to Malaysia.

33. For these reasons I do not accept there to be a real chance the applicant will face harm for reasons of her other debts if she returns to Malaysia, now or in the reasonably foreseeable future. For the same reasons I do not accept there to be a real risk the applicant will face significant harm from money lenders as a necessary and foreseeable consequence of being returned to Malaysia.

    Fear of economic harm

34. I have considered the applicant’s statements in her protection visa application that she left Malaysia because of the poor state of that country’s economy and her financial difficulties, including payment of her student loans. I note the applicant’s evidence she has been employed in Malaysia in the past and is currently working in Australia. For the reasons set out above I have accepted she has debts in Malaysia including a student debt, a debt relating to the family’s [car] and debts to financial institutions and that she continues to make payments towards those debts. I have not accepted that any of the institutions to whom she owes money will seek to harm her if she returns to Malaysia.

35. At hearing the applicant told me that the economic situation in Malaysia together with COVID-19 would make it hard to get a job and [she] realised that only people who are known to each other and their family members were offered jobs.

36. At the Tribunal hearing I discussed with the applicant that a refugee was a person with a well-founded fear of persecution in their own country, which meant the Tribunal had to be satisfied there was a real chance she would be subjected to serious harm if returned to Malaysia for reasons of her race, religion, nationality, membership of a particular social group or political opinion. I discussed with her that the economic harm she feared did not appear to arise for any of those reasons. The applicant stated that without a job she would be unable to assist her family.

1. I find the economic harm feared by the applicant is not for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion. Therefore, she does not meet the criteria set out in s.5J(1)(a) of the Act and it follows he does not meet the criteria set out in s.36(2)(a).

2. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether 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 will suffer significant harm. ‘Significant harm’ is exclusively defined in s.36(2A) as follows:

   (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.

3. The applicant does not suggest that she will be arbitrarily deprived of her life or subjected to torture for any reason, nor that the death penalty will be carried out upon her. In discussion about the complementary protection criteria, she stated that the economic situation in Malaysia would not allow her to have the life that she had dreamed about.

4. As discussed with the applicant at hearing, the Australian courts have held that complementary protection obligations are concerned with intentional acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person or persons.[2] I do not accept there to be a real risk the applicant will suffer ‘significant harm’ as that term is exhaustively defined in s.36(2A) for reasons relating to the state of the Malaysian economy, as a necessary and foreseeable consequence of being returned to Malaysia.

   [2] GLD18 v MHA [2020] FCAFC 2.

   CONCLUSIONS

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

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

7. 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 any of the criteria in s.36(2).

   DECISION

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

   Alison Murphy
   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.

   …