2010017 (Refugee) - [2024] ARTA 745

2010017 (REFUGEE) [2024] ARTA 745 (11 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2010017

Tribunal:General Member X Emery
Date:11 December 2024

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

Statement made on 11 December 2024 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – threats from money lenders – criminal gang – attack on home – physical assault – fear of kidnapping – state protection – return visit to Taiwan – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Migration Act).
The applicant is a citizen of Taiwan and applied for the visa on 17 June 2019. On 21 May 2020 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.
The applicant applied for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 16 June 2020.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (the ART).[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1)Act 2024 (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 ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.
[1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.
The applicant appeared before the Tribunal on 2 July 2024 and 6 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
CLAIMS AND EVIDENCE
Background
In his visa application and in oral evidence to the Tribunal, the applicant provided the following information. He was born in [specified year] in Taipei, Taiwan. He is not married and has no partner, although advised the Tribunal he had a girlfriend. His parents reside in [Town 1] Township, Yulin County, Taiwan. He has [a sibling] in Gaoxiong, Taiwan, and a [brother] who lives with his parents in [Town 1].
He is university educated and had previously worked in hospitality in Taiwan. He has completed his compulsory military service in Taiwan.
The applicant was unable to say with certainty when he first travelled to Australia. He initially said around October 2018 and that he went back to Taiwan around 2019. He said he came to Australia on a Working Holiday visa. He later confirmed he had a second working holiday visa, and that he had been in Australia on his first working holiday visa prior to the issue of his current passport in [2017].
Movement records on the Tribunal file, relating to the applicant’s current passport ([Number], issued [in] 2017) indicate he arrived in Australia [in] March 2018 as the holder of a Working Holiday (Subclass 417) visa. The applicant has not left Australia since.
Evidence before the Department
The applicant applied for a Protection (Subclass 866) visa on 17 June 2019. Together with his visa application form, the applicant provided a copy of the biodata page of his Taiwanese passport.
In his visa application, the applicant made the following claims to be owed protection. His father’s body condition was not good and he needed an operation. Their family didn’t have enough money and couldn’t borrow from a bank and so his parents borrowed money from an underground bank. The interest was high and they couldn’t return the interest on time after the operation. The underground bank often sent people to harass and threaten them. They caught his father. His mother was worried and sent the applicant abroad. After that the ‘gangdom’ sent a person to smash his house and beat his mother. He didn’t try to move because the Taiwan government is riddled with corruption and each officer tries to protect each other. No matter where he goes he will be caught by them and harmed. His life was in danger and so he fled to Australia. If he returns to Taiwan, he will be arrested by the police and tortured cruelly in prison. The authorities in Taiwan cannot protect him because the Taiwan government is riddled with corruption and each officer tries to protect each other. He cannot relocate because all of China [sic] is the same. Officers only care about their own benefits. They have the power to hide the truth. No matter where he goes, he will be arrested.
The applicant was not invited to an interview with the delegate. No additional material or evidence in support of his claims to be owed protection was provided to the Department. On 21 May 2020 the delegate refused to grant the applicant a protection visa. The delegate found that effective protection measures were available to the applicant in Taiwan, and he therefore did not have a well-founded fear of persecution. The delegate also found that the applicant could obtain, from an authority of Taiwan, protection such that there would not be a real risk he would suffer significant harm and was therefore not owed complementary protection.
Evidence before the Tribunal
The applicant applied for review of the delegate’s decision on 16 June 2020 and provided a copy of the delegate’s decision record with his review application. No additional written information or evidence was provided to the Tribunal in support of the applicant’s claims for protection prior to the hearing.
At the hearing on 2 July 2024, I discussed with the applicant his travel history, family, education, employment history, the places he has lived in Taiwan and Australia, and the circumstances in which he made his protection application. This hearing was then adjourned.
On 5 July 2024 the applicant was sent an invitation to the resumed hearing, scheduled for 6 August 2024.
On 31 July 2024 the applicant appointed a representative, who made a request for access to documents under freedom of information (‘FOI’) and sought a ‘28-day extension’ to obtain those documents. I considered this to be a request to postpone the resumed hearing for 28 days. I declined to postpone the hearing scheduled for 6 August 2024, and instead instructed that copies of the following documents be provided to the representative to enable him to prepare for the 6 August 2024 hearing:
a.The applicant’s protection visa application form.
b.The Department of Home Affairs visa refusal notification and decision record.
c.The applicant’s application for review form.
d.The audio recording from the first hearing before the Tribunal on 2 July 2024.
e.The invitation to the resumed hearing scheduled for 6 August 2024.
Given that the applicant was first invited to a hearing on 12 June 2024, attended a hearing on 2 July 2024, and was aware from 5 July 2024 that the resumed hearing would take place on 6 August 2024, yet did not appoint a representative until 31 July 2024, I did not consider it was an efficient use of the Tribunal’s resources to further postpone his hearing. Additionally, given the limited evidence on the Department and Tribunal files in support of the applicant’s claims for protection, I did not think that the applicant or representative would be at a significant disadvantage in having to prepare for the 6 August hearing.
On 5 August 2024 the applicant withdrew his appointment of the representative and authorised recipient, and he attended the resumed hearing on 6 August 2024 without representation. At the beginning of the resumed hearing, the applicant advised he was no longer represented because ‘the money has been used up’, and confirmed he was content to proceed with the hearing that day.
At the first hearing the applicant provided a copy of his tax return for 2022-23, an activity statement for 1 July 2023 to 30 September 2023, and a National Crime Check Visa Work Entitlement Check that indicated the system was unable to identify the subject of the inquiry. At the resumed hearing I discussed the relevance of these documents with the applicant. The applicant confirmed they had no direct relevance to his claims and were provided as evidence he is working in Australia and not taking advantage of Australia’s welfare system.
The applicant’s oral evidence at the hearings was that he met an agent through a friend, who said they could help him to stay in Australia and that he just had to pay money. He was not aware at the time he was applying for a Protection visa. This agent completed the visa application form. He first saw the form on 1 August 2024 with the help of his then lawyer. I discussed with the applicant the claims contained in his visa application. The applicant stated they were not true and that he had not borrowed money from anybody. He thought the agent who had applied for the visa for him had made those claims up.
The applicant’s claims at hearing before the Tribunal were as follows. He had a friend from Taiwan, [Mr A] who he had known from university. In April 2017, they rented a property together in [Suburb 1] in Sydney. They lived together for only around two months before [Mr A] returned to Taiwan in about June 2017. Before he returned to Taiwan, [Mr A] had asked to borrow some money from the applicant. The applicant did not lend him money but paid his share of the rent deposit and other expenses, amounting to about AUD$2,000. Because they ended their lease early when [Mr A] returned to Taiwan, the landlord didn’t give their bond back. The applicant then needed to pay a bond and rent for his new accommodation, and was applying for his second Working Holiday visa, so he asked [Mr A] to pay him back. However, [Mr A] refused to take his calls. The applicant contacted [Mr A's] family in Taiwan and asked them to pass on his information so that he could talk to him as soon as possible. The applicant claimed that [Mr A’s] father asked the applicant if [Mr A] had been using drugs, and the applicant said he had. Their dispute started after this. The applicant believes that [Mr A] feels his dignity was harmed and that he hates him because of what he told his father about his drug use, which may have affected his entitlement to inheritance.
After this [Mr A] began to threaten and harass the applicant over the phone and through friends, and spread rumours about him on social media, claiming that the applicant owed him about NT$100,000, which the applicant did not. [Mr A] set up groups on the social media platforms [specified] to find the applicant. [Mr A] also contacted the applicant’s family in Taiwan and told them the applicant owed him money. In the beginning, [Mr A] called the applicant’s family every few days, but then later it was from time to time. [Mr A] would say to the applicant that if he wanted to get his money they had to meet in person and fight, and if the applicant won, then [Mr A] would give him his money. The applicant did not meet him in person. He was too afraid because [Mr A] practises martial arts, and [Mr A] was in Taiwan. The applicant believes [Mr A] wants him to return to Taiwan so he can fight the applicant.
The applicant was last in Taiwan from November 2017 to March 2018. The applicant claimed that [Mr A] knew he was in Taiwan and that he started getting calls from [Mr A] the first day he was in Taiwan. [Mr A] called him over the phone, through social media, and called his parents’ home. [Mr A] said he knew the applicant was in Taiwan and asked to meet him. The applicant believes [Mr A] knew he was in Taiwan because the applicant had been working for a friend of [Mr A] in Australia. He got a new job when he returned to Australia in March 2018.
These threats and harassment went on for about 2 years between 2017 and 2019. I asked whether the applicant’s family ever sought any help from the authorities in Taiwan, to which the applicant responded that he didn’t know. He himself never sought any assistance from the authorities in Australia or Taiwan in response to [Mr A’s] harassment.
The last time the applicant heard from [Mr A] was in about 2019. In 2019 the applicant blocked the [specified] social media groups, and stopped posting on social media himself. He believes [Mr A] is in Taiwan, but he doesn’t know where he lives. The applicant claimed later in the hearing that in 2023, a friend of [Mr A] contacted a friend of the applicant to find out about how he is doing in Australia. I asked the applicant how he knew about this, and his response was that sometimes his friends in Taiwan ask him what he is doing in Australia. When I enquired why this indicated that [Mr A] was after him, the applicant simply gave the names of two other people he claims are after him or who ask how he is doing in Australia.
The applicant fears that if he returns to Taiwan, [Mr A] will do something to harm him, like harass him or kidnap him out of the blue. I put to the applicant that it was difficult to understand why [Mr A] would still have any interest in the applicant given he had not heard from him for around five years. In response, the applicant said it was because he still has other friends and had created social media groups [specified] for the purpose of finding the applicant. The applicant claimed [Mr A] is very dangerous because during the two months they lived together in Australia [Mr A] didn’t have a job and the applicant believes he was using drugs. The police in Taiwan could help but they can’t provide 24-hour protection.
At the resumed hearing the applicant presented screenshots from social media apps on his phone that had not been translated by an accredited translator, as well as a USB which the applicant claimed contained audio recordings of threats or harassment from [Mr A] in Mandarin. I explained to the applicant that in order for me to have regard to the evidence it would need to be translated into English. I also explained that I was unable to accept the USB and that he would need to have any audio recordings he wished me to have regard to, transcribed and translated into English. I gave the applicant until 20 August 2024 to provide any further translated evidence that he wished to.
On 20 August 2024 the applicant provided translated screenshots from the groups he said were set up on [social media groups], as well as a transcript and translation of an audio file.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Migration 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 because they are a ‘refugee’, or are owed ‘complementary protection’, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
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). The meaning and requirements of 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(1)-(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 there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (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 is a person in respect of whom Australia has protection obligations because he is a refugee or owed complementary protection. For the following reasons, I have concluded that the decision under review should be affirmed.
Despite some concerns with the overall quality of the applicant’s testimony, I am prepared to accept on his oral evidence, and the documents he provided after the hearing that he had a dispute with a person called [Mr A]. I accept the applicant’s claims that this arose in about mid 2017 out of a quarrel over money. I also accept that [Mr A] threatened to fight or harm the applicant if he returned to Taiwan. I accept that [Mr A] contacted the applicant’s family in Taiwan over the phone.
However, for the following reasons I am not satisfied on the information before me that there is a real chance the applicant will be seriously harmed, or a real risk he will suffer significant harm from [Mr A] or anyone else in the reasonably foreseeable future because of this dispute or for any other reason.
Firstly, the applicant’s evidence was that he was in Taiwan between November 2017 and when he returned to Australia in March 2018. He claimed that [Mr A] called him and his family during this time, but did not claim that he was otherwise harmed, despite this being in close proximity to when the dispute first arose. Given this, and the significant passage of time since then, I do not accept the applicant’s assertion that [Mr A] will assault or kidnap him were he to return to Taiwan now or in the reasonably foreseeable future.
Secondly, the applicant’s own evidence was that he had last communicated with [Mr A] sometime in 2019, that he did not know where in Taiwan [Mr A] lived or whether he continued to live in Taiwan at all. The applicant could not explain how [Mr A] would know if he returned to Taiwan in the future or why he would seek to harm the applicant given he has not contacted him since 2019. The applicant did not claim that [Mr A] has continued to contact or harass his family in Taiwan. I note the applicant’s evidence was that he had blocked the social media groups that were created during the dispute and that he had stopped posting on social media himself. Nevertheless, I am prepared to accept that through social media or mutual contacts, [Mr A] may come to know if the applicant returns to Taiwan. However, given that [Mr A] has not contacted or threatened the applicant or his family in about five years, I am not satisfied that he would contact or threaten the applicant now or in the reasonably foreseeable future should the applicant return to Taiwan. On the information before me, I am not satisfied that [Mr A] has any interest in the applicant and would seek to threaten, assault, harass, or kidnap him.

Thirdly, the applicant’s evidence was that neither he nor his family ever sought any assistance from the police or other authorities either in Taiwan or Australia, including when the applicant was last in Taiwan. This is despite the applicant claiming that he was repeatedly called and threatened over the phone. I consider that this undermines both the claimed seriousness of the threats and harassment the applicant says he experienced in the past, as well as his claims to be at risk of harm from [Mr A] in the future, particularly (again) given the passage of time.
I have considered the evidence the applicant provided after the hearing, on 20 August 2024. The translated screenshots the applicant provided after the hearing are undated and do not appear to include [Mr A] as a participant. Additionally, the screenshots from one group appear to accuse the applicant of having gathered people to invest, which was not something the applicant had referred to in his oral evidence. I accept the screenshots provided by the applicant corroborate his claim that rumours were spread online about him owing money to people, but I find they are of minimal weight in establishing his claim that [Mr A] or anyone else would harm him on return to Taiwan now or in the reasonably foreseeable future.
I have also considered the translated transcript the applicant provided after the hearing. I accept this document also corroborates the events the applicant claims took place, the reason for the dispute, and the threats made by [Mr A]. However, this document is also undated, and so it is not apparent when this conversation took place, and whether it took place on one occasion or represents a conversation that took place over a period of time. There is also no information before me about the source or origins of the audio recording it is said to be based upon. In light of these issues, I find it is also of minimal weight in establishing the applicant’s claim that [Mr A] or anyone else would harm him on return to Taiwan now or in the reasonably foreseeable future.
On the evidence or information before me, I do not accept [Mr A] would have the means or the motivation to harm the applicant. Accordingly, I am not satisfied there is a real chance or real risk the applicant will be harmed in any way by [Mr A] or someone else associated with him in the reasonably foreseeable future should he return to Taiwan. It follows that I am not satisfied the applicant is a refugee or owed complementary protection for reason of his dispute with [Mr A].
The applicant’s evidence regarding the claims in his visa application was that they were not true, that he didn’t borrow money from anyone, and that he thought the person who had assisted him to apply for protection had made those claims up. In light of this, I am also not satisfied the applicant faces a real chance of serious harm, or a real risk of significant harm in Taiwan because he and/or his parents borrowed money from an underground bank or for any other reason in his visa application. It follows that I am not satisfied the applicant is a refugee or owed complementary protection for any of the reasons in his protection visa application.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). There is no evidence before me that the applicant satisfies s 36(2)(b) or (c) 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 under review.
Date(s) of hearing:               2 July 2024 and 6 August 2024
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.
…