2102127 (Refugee)

[2021] AATA 4568

2102127 (Refugee) [2021] AATA 4568 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102127

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Damian Creedon

DATE:18 November 2021

PLACE OF DECISION:  Perth

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

Statement made on 18 November 2021 at 7:03am

CATCHWORDS

REFUGEE – Protection visa – Indonesia – inability to earn a wage there sufficient to continue repaying his debt to the bank – no fear of violence or persecution based upon non-payment of the debt – effective protection measures are available to the applicant – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 10 February 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant, a [age]-year-old Indonesian citizen, arrived onshore [in] April 2011 holding a [temporary] visa.

3. The applicant applied for a protection visa on 9 June 2020, and presently holds a bridging visa.

   Protection visa application

4. In his protection visa application and supporting materials the applicant claims to fear returning to Indonesia because he has debt there, the “economy”, and because his debt has caused him “family problems”.

5. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to her receiving country, there was a real risk she would suffer significant harm.

6. The applicant applied for a review of the delegate’s decision.

   Application for review

7. The applicant was not represented in relation to the review.

   Hearing

8. The applicant appeared before the Tribunal on 16 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

   Applicant’s oral evidence

9. The following is a summary of the applicant’s evidence to the Tribunal:

   a.The applicant was born in Palembang, Sumatra, Indonesia.

   b.He is [one] of [a number of] children. His parents and siblings are resident in Indonesia.  He is not married or in a de facto relationship, he has no children and no family in Australia.  He speaks with his family in Indonesia “twice a week”.

   c.The applicant completed his high school in Indonesia before working in a [workplace] and operating a [business].

   d.The applicant came to Australia in 2011 as part of a group; he described his role in the group as a “[occupation]”.  The applicant first arrived in Melbourne but travelled to Perth at the encouragement of an Indonesian friend.

   e.When asked by the Tribunal what it is that he fears about returning to Indonesia, the applicant stated “debt”.  When pressed, the applicant stated that he borrowed money for a bank which he used to “help his family” and to purchase a house.  When further pressed as to the nature of the bank, the applicant stated that it was an “official bank”, and specifically denied that it was an informal lender or a “loan shark”.

   f.The applicant stated that the loan was taken out in 2013 and was for the equivalent of approximately AUD$100,000.  The applicant stated that he disbursed the money according to the terms of the loan.  He stated that the loan is still being repaid, it is nor in arrears and that he repays the loan from his earnings in Australia.  He stated to the effect that his younger sibling, his sister, acts as his agent in Indonesia in dealings with the bank there.

   g.When pressed as to the nature of his fear in relation to the debt, the applicant stated that he feared returning to Indonesia as he could not afford to repay the loan.  When pressed, the applicant stated that his salary in Indonesia would not be enough and the work situation there was “uncertain”.

   h.The Tribunal raised with the applicant his written claims for protection concerning “family problems” in Indonesia.  The applicant stated that prior to obtaining his bank loan, he borrowed money from family members and that that “caused problems”.  When pressed, the applicant stated that the money he borrowed from family members was repaid to them from the funds made available under the bank loan.

   i.Despite having repaid the money borrowed from his family members, the applicant stated to the effect that some of the family are still “not happy” with him.  When pressed as to whether his family had caused him to fear for his safety, the applicant stated that before he paid off the loan he was told by a cousin to “watch out” if he ever returned to Indonesia.  When further pressed as to what he feared his cousin may do to him, the applicant stated that he feared that his cousin may “kill [him]” or “beat [him] up”.

   j.The applicant stated that the threats were made to him in 2010 and the money had been repaid around 2013.  He confirmed that he has had no communication with his cousin since the money was repaid.

   k.When asked whether, given the passage of time and that the money had been repaid, his cousin would still be motivated to be violent towards him, the applicant stated that “yes, [he was] still scared”.  When further pressed, the applicant stated that “maybe [his cousin] still bears a grudge’.

   l.When pressed as to what steps he could take to protect himself if he were to return to Indonesia, the applicant stated he could “move to another province”.  When further pressed as to whether he would be safe in another province, the applicant stated:

   Not sure; maybe yes.

   m.When asked what steps his cousin might take to be violent towards him, the applicant stated:

   Maybe look for me, find out about me.

   n.When asked whether he could make a complaint to the police in Indonesia if he felt threatened by his cousin, the applicant agreed that he could do so.  When asked whether there was any reason why the police would not help him in those circumstances, the applicant stated there were not, and he expected the police would help him.

   o.The Tribunal then raised with the applicant the phrase “domestic violence” which appeared in Part C of his protection visa application forms.  The applicant clarified that he intended the phrase to describe the situation with his cousin and his family over the moneys he had borrowed from them. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria of a protection visa

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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

    Assessment of Claims and evidence, and findings:

16. 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 satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

17. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

18. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’.  (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196).  However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

19. The Tribunal has carefully considered all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Findings

21. In giving his oral evidence, the applicant appeared to the Tribunal to do so honestly and truthfully.  Overall, the Tribunal is persuaded as to the general truth of the matters he attests to. 

22. Although the applicant did not provide any documentary evidence to corroborate his claims, his evidence was coherent and plausible, and it does not run counter to generally known facts.  Accordingly, the Tribunal extends the benefit of the doubt to the applicant.  Having considered the applicant’s evidence in this light the Tribunal is persuaded that:

    a.Prior to coming to Australia, the applicant had borrowed money from family members, including his cousin.

    b.As a result of the loan, some members of the applicant’s family were “not happy” with him. 

    c.In 2013, after arriving onshore, the applicant, obtained a loan from an “official” Indonesian bank in a sum equivalent to (approximately) AUD$100,000.  The applicant’s sister in Indonesia helped him to make these arrangements.

    d.The applicant used the money he borrowed from the bank to fully repay his outstanding debts to his family members and to purchase a house in Indonesia.

    e.The applicant has been repaying his debt to the bank with his earnings in Australia.

    f.The applicant’s debt to the bank is not yet fully repaid, however it has been properly serviced according to its terms and is not in arrears.

    g.The applicant does not wish to return to Indonesia because he would be unable to earn a wage there sufficient to continue repaying his debt to the bank.

    h.Further, the applicant fears that his cousin, from whom he borrowed money, may hold a grudge against him.

    i.The applicant believes he could move to another province in Indonesia to secure his safety from his cousin.

    j.The applicant believes the police in Indonesia would help him if he made a complaint against his cousin should threats be made against him.

23. The Tribunal also accepts that the applicant wishes to stay in Australia to make a future for himself here. 

    Analysis of claims

24. Throughout his oral evidence the applicant’s fear at returning to Indonesia centred upon his in inability to earn a wage there sufficient to continue repaying his debt to the bank.  The applicant was specifically asked by the Tribunal whether the debt was from a legitimate bank or from “loan sharks” or other informal lenders.  The applicant was adamant in his evidence that his loan was from an “official bank” in Indonesia.  He claimed no fear of violence or persecution based upon non-payment of the debt.

25. The only specific fear of violence apparent on the applicant’s evidence was his concern that his cousin may still “bear a grudge” against him on account of his having previously borrowed money from family members.  However, the Tribunal found this evidence to be vague and lacking in particulars.   The applicant was unable to satisfactorily explain to the Tribunal why his cousin would still be motivated to pursue him some 10 years after threatening him over the debt and some eight years after having been repaid the moneys owing to him in full.  Overall, the applicant’s claims regarding fearing violence at the hands of his cousin in Indonesia appeared to the Tribunal to be mere speculation on his part not amounting to a well-founded fear.[1] 

    [1] MIEA v Guo (1997) 191 CLR 559 at 574-5.

26. Further, the applicant gave clear evidence that he could complain to the police in Indonesia if he felt threatened by his cousin; that there was no reason the police would not help him; and that if he did lay a complaint with the police, he expected that they would help him.  The Tribunal finds, therefore, that effective protection measures are available to the applicant in Indonesia regarding any fear of violence he holds as regards his cousin.

27. The Tribunal notes that the applicant does not wish to return to Indonesia because he would be unable to earn a wage there sufficient to continue repaying his debt to the bank.  The applicant made no claim that this circumstance would result from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion or membership of a particular social group.

28. In its May 2021 Economic Forecast Summary,[2] the OECD reports in respect of Indonesia that:

    GDP growth is projected to resume at around 5% annually in 2021 and 2022. The economy has been slowly recovering since mid-2020 thanks to policy support, gradual reopening and favourable global conditions. The second wave of the virus and the slow pace of inoculation are preventing a faster normalisation of activity. Lingering concerns about the pandemic weigh on consumer and business confidence and prevent domestic demand to return to trend levels. External demand for commodities such as coal, palm oil and rubber supports growth, with positive prospects thanks to the signing of RCEP (Regional Comprehensive Economic Partnership) and other trade agreements.

    [2] The Organisation for Economic Co-operation and Development (OECD), Indonesia Economic Snapshot; Economic Forecast Summary, May 2021.

29. The Tribunal is not persuaded on the applicant’s evidence or the country information cited that the applicant would be subjected to significant economic hardship in Indonesia that threatens his capacity to subsist there. 

30. The Tribunal finds that the applicant does not have a well-founded fear of persecution in Indonesia apparent on the face of the evidence.

    Cumulative claims

31. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearing, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Indonesia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Indonesia. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

32. The Tribunal has considered the applicant’s claims under complementary protection. 

33. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Indonesia now or in the reasonably foreseeable future.

1. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment.  It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty.  The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Indonesia.  Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

   Conclusion: Refugee Criterion

2. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group).  His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.

   Conclusion: Complementary Protection

3. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia that there is a real risk that he will suffer significant harm.

   Overall conclusion:

4. 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).

5. 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).

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

   DECISION

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

   Damian Creedon
   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.

   …