2009349 (Refugee) - [2024] ARTA 808

2009349 (REFUGEE) [2024] ARTA 808 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2009349

Tribunal:General Member L Hill
Date:10 December 2024

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

GENERAL MEMBER L HILL
STATEMENT MADE ON 10 DECEMBER 2024 AT 17:20PM AEST

CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from former customers – forced payment of damages – employment – fear of killing – physical assault – internal relocation – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 18 December 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
On 4 June 2020, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 7 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 6 December 2024. Amongst other things, the hearing letter advised the applicant to contact the Tribunal as soon as possible if she was not available to attend or believed that she would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.
On 28 November 2024, the applicant emailed to the Tribunal a completed ‘Response to hearing notice’ form dated 28 November 2024. In this form, in response to the question ‘Will you take part in the hearing scheduled for 6 December 2024’, the applicant ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’. On 29 November 2024, the applicant emailed the Tribunal the same completed notice dated 28 November 2024.
Can a decision on the papers be made without holding a hearing?
Subsection 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision without a hearing.
Did the parties consent to proceeding without a hearing?
In this case, in order to proceed without a hearing, the Tribunal must be satisfied that subsection 106(3) of the ART Act has been met.
Paragraph 106(3)(a) and (b) of the ART Act sets out that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour or the applicant or the applicant requests the Tribunal to make its decision without holding the hearing.
In this case, the Tribunal is satisfied that both paragraph 106(3)(a) and subparagraph 106(3)(b)(ii) have been met, as the only parties to the proceeding are the applicant and a non-participating party; and the applicant has ticked the response; ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed ‘Response to hearing notice’ form dated 28 November 2024.
Can the issues for determination be adequately determined in the absence of the parties?
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
As per EIZ20 v Child Support Registrar,[1] it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing. In properly carrying out its duties, ‘the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing’. [2]
[1] [2023] FedCFamC2G 637 (20 July 2023)
[2] [2023] FedCFamC2G 637 (20 July 2023)
Subsection 5AAA(2) of the Act states that ‘it is the responsibility of the non-citizen to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim’. In this regard, the Tribunal notes that:
·On 18 December 2019, the applicant lodged with the Department of Home Affairs (the Department) an application for a protection visa and provided her claims for protection.
·On 17 March 2020, the Department wrote to the applicant, acknowledging receipt of her valid application. She was advised that ‘all claims, supporting documentation and evidence should have been provided when you lodged your application’ but that she may bring ‘additional information [she] would like considered to [her] appointment for the personal identifiers or provide through ImmiAccount or by mail. At the time of the delegate’s decision, no further information had been received by the Department.
·On 5 June 2020, the Tribunal wrote to the applicant, acknowledging her application for review. She was advised that the Tribunal had requested the Department to provide all documents and files which they considered relevant to her application. The applicant was also requested to ‘provide material or written arguments for [the Tribunal] to consider… as soon as possible’.
·On 7 November 2024, the Tribunal wrote to the applicant, inviting her to attend a hearing. The hearing invitation requested the applicant to complete the ‘Response to hearing notice’ form and attach any additional information or new information which she wished the Tribunal to consider. Additionally, she was also asked to ‘provide all documents [she] intend[ed] to rely on to support [her] case by 29 November 2024.
·On 28 November 2024, the applicant emailed to the Tribunal a completed ‘Response to hearing notice’ form dated 28 November 2024. On 29 November 2024, the applicant emailed the same completed form dated 28 November 2024. No additional information or documents were provided with this form.
·On 29 November 2024, the Tribunal wrote to the applicant, acknowledging receipt of the form, her response that she will not be participating in the hearing; and request for the Tribunal to make a decision on the papers without holding a hearing. She was advised that based on her response; the hearing had been cancelled and the Tribunal will now make a decision on her application for review on the information it has before it.
To date, the applicant has not raised or indicated to the Tribunal that she wished to provide any additional information or new information, documents and/or submissions for consideration. Nor has the applicant provided any further information, documents and/or submissions to the Tribunal.
The Tribunal is satisfied that the applicant has had an opportunity to present her case, and provided all the information and evidence that she considers important and relevant in support of her case; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties.
CLAIMS
The applicant’s claims for protection are set out in the ‘application for a protection visa’ lodged with the Department on 18 December 2024. In summary, the applicant claims:
·She is seeking protection and cannot return to Malaysia.
·She was a skilled and diligent worker who sold products and was blocked by other employees of the company where she worked and prosecuted and forced to pay damages to customers/clients of 10,000 Malaysian ringgit (MYR).
·Her company shut down without any notice. She lost her job. She was depressed and shocked and suffered hardship and difficulties as a result and was unable to support her life and family.
·Every day she received phone calls from former customers/clients who would insult, scold, bully, intimidate and overload her with punishment because she did not meet their demands. Her safety was threatened. They also intimidated her family.
·The former customer/clients said they would report her to the police if she did not pay back the money.
·She did not know how to solve this problem, as it was not her fault. The company was responsible for the risk, and she was the victim.
·She didn’t seek any help within Malaysia as she didn’t think she could get any protection as she has had direct threats against her life.
·She didn’t move, or try to move, to another part of Malaysia to seek safety, as migrating to another country is not easy or a solution. She came to Australia as the jobs in Australia give her more opportunity and profitability.
·She believes she will be harmed or mistreated on return to Malaysia by the former customers/clients. She received phone calls where they warned and sought to blackmail her. One night she was kicked and beaten by one of her former customers/clients when returning from town.
·She does not believe that the authorities of Malaysia could protect her on return as she has had direct threats against her life.
·In relation to relocation, she states; “I urge the good office of the Immigration to give me Protection and Permission or working wright (sic) to work legally here. I feel safe and freedom here”.
The Department did not invite the applicant to an interview.
On 19 May 2020, the delegate of the Minister made a decision to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate was not satisfied that there was a real chance that, if the applicant was returned to Malaysia, they would be persecuted for one or more of the reasons in s 5J(1)(a) of the Act; and was not a person whom Australia had protection obligations as outlined in s 36(2)(a) of the Act. The delegate also found the applicant could obtain, from the authorities of Malaysia, protection such that there would not be a real risk that she will suffer harm under s 36(2B)(b) of the Act; and subsequently was not satisfied that she was a person in respect of whom Australia has protection obligations as provided for in s36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
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.
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.
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).
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.
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
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference (and receiving country)
The applicant provided the Department with a copy of the biographical/biodata page of her Malaysian passport. The Tribunal is satisfied that the applicant is a citizen of Malaysia.
There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that she has a right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) of the Act does not apply.
The Tribunal finds that the receiving country is Malaysia; and on this basis the applicant’s claims have been assessed against Malaysia.
Does the applicant satisfy the refugee criterion for protection?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to persuade the Tribunal that all the statutory elements are made out.[3] It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claims, or to establish or assist in establishing the claims: s 5AAA. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant.[4]
[3] MIEA v Guo (1997) 191 CLR 559.
[4] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered the applicant’s claims for protection; however, it finds them to be fragmented, unclear and insufficiently detailed. There is no specific information relating to dates/times, locations, names of the company and/or customers/clients or any essential details to assist with determining the veracity of the claims.
The applicant claims to have sold products for a company prior to the company ceasing operations. She has not provided any discernible details about the company or her involvement with it such as how long she worked with them, what products she sold, where the company was located or why or when it ceased operating.
The applicant claims that she was blocked by employees where she worked and prosecuted and forced to pay damages to customers/clients. She has not provided any details about when this event had occurred, who the employees were, why they had targeted her or details of her prosecution or why she was forced to pay damages in the manner and amount claimed.
The applicant claims everyday she was contacted by former customers/clients who asked her to pay them the money the company owed. The former customers/clients insulted, scolded, intimidated, punished, threatened, and blackmailed her. Her family was also intimidated. One night she was kicked and beaten by one of her former customers/clients when returning from town. She has not provided any details to explain when these events occurred, why the former customers/clients were targeting her, what involvement the police and/or state authorities had in her issues and how or why the former customers/clients were targeting her family. Nor has she provided any discernible details about the events in which she claimed to have been kicked and beaten by a former customer/client.
The applicant claims that she cannot seek any help or move to avoid the harm, nor would the state authorities protect her from the harm she fears on return. She hasn’t clearly explained why she could not seek help from the police and/or state authorities. Nor is it clear why she decided to move to Australia instead of another area of Malaysia to avoid the harm.
The Tribunal only has before it the brief information provided by the applicant in her application for a protection visa and given the concerns articulated above, the Tribunal is not satisfied that the applicant’s past experiences in Malaysia and/or her claims for protection are reliable or true.
The Tribunal does not accept that the applicant was blocked by other employees and prosecuted and forced to pay any damages to customers/clients. The Tribunal does not accept that her company was shut down and as a result this led to her and/or her family suffering any hardships and/or difficulties and/or mental health issues.

The Tribunal does not accept that the applicant received any phone calls or visits from former customers/clients during which was insulted, scolded, intimidated, punished, threatened, blackmailed, warned and/or harmed in any way. The Tribunal does not a accept that one night, she was kicked and beaten by one of her former customers/clients. Nor does the Tribunal accept that anyone including former customers/clients intimidated, threatened, or harmed her family in any way.
The Tribunal notes that in her application for a protection visa, the applicant states she is a Muslim Malay, which the Tribunal accepts. However, the applicant has not indicated that she has experienced any problems on these bases in the past, nor expressed concerns about them in the future; and it follows that the Tribunal is not satisfied that such claims arise on the material.
Having considered the totality of the evidence, the Tribunal does not accept the applicant’s past experiences in Malaysia and/or her claims for protection in their entirely; and it follows that the Tribunal is not satisfied the applicant faces a real chance of harm, on these bases or for any other reason, should she return to Malaysia, now or in the reasonably foreseeable future.
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) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act, the Tribunal has 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 she will suffer significant harm.
As outlined above, the Tribunal has not accepted the applicant’s past experiences in Malaysia and/or her claims for protection in their entirely; and found that the applicant does not face a real chance of harm, on these bases or for any other reason, should she return to Malaysia, now or in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion;[5] and it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
[5] MIAC v SZQRB [2013] FCAFC 33.
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)(aa) of the Act.
Member of the same family unit
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…