2108655 (Refugee)

[2023] AATA 2638

2108655 (Refugee) [2023] AATA 2638 (29 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Bernie Carrick

CASE NUMBER:  1836987, 1905855 & 2108655

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Nora Lamont

DATE:29 June 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal:

a.    remits the matter of a SHEV application made on 22 July 2016 and 6 November 2020 (and bearing Tribunal review case numbers 1836987& 2108655) with the direction that the applicant satisfies s 36(2)(a) of the Act; and

b.    The Tribunal sets aside Tribunal review case number 1905855 made on 22 July 2016 with the decision refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered.

Statement made on 29 June 2023 at 2:52pm

CATCHWORDS

REFUGEE – protection visa – Pakistan – Pashtun ethnicity – targeted by the Nizamani people – threats from the Muttahida Quami Movement (MQM) – particular social group – Pashtun men in Pakistan – state protection – internal relocation – duplicate application for review found invalid – decision under review remitted

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

DBB16 v MIBP (2018) 260 FCR 447

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 decisions made by a delegate of the Minister for Home Affairs to refuse to grant the applicant protection visas under s 65 of the Act.

2. The applicant claims to be a citizen of Pakistan.

3. According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] 2013. In DBB16 v MIBP (2018) 260 FCR 447, the Full Federal Court determined that a person who arrived in Australia by sea at the Territory of Ashmore and Cartier Islands is not an ‘unauthorised maritime arrival’ (as was defined in s 5AA of Act). Accordingly, the applicant is not a ‘fast track applicant’ (as defined in s 5(1)) and a decision refusing to grant them a Safe Haven Enterprise visa is a Part 7-reviewable decision in the Migration and Refugee Division of the Administrative Appeals Tribunal.

4. The applicant made two separate applications for review of the same decision. File 1836987 was lodged on 17 December 2018 and file 1905855 was lodged on 12 March 2019. File 1905855 is a duplicate of file 1836987 and is considered invalid. The applicant also applied for review of a second refusal decision on 6 November 2020 which is file 2108655. This application is reviewable and as such has been combined into one decision as both applications are valid (s427(2) of the Act.  Therefore, this application is a combined decision for file 1836987 and 2108655.

1. There are no non-disclosure certificates on the applicant’s file.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

11.  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

Applicant’s Background

12.  The applicant was born in [City 1], Sanghar District in Sindh Province Pakistan on [date]. He is an ethnic Pashtun and Sunni Muslim. He is married and has [number] daughters and [number] sons one of whom resides in Australia the others remain in Pakistan. He has [number] brothers (one is deceased) [number] of his brothers live in [Country 1] and [number] are in Karachi. The applicant is unemployed and finds that finding work is difficult given his age of [age].

13.  The applicant first arrived in Australia in 2013 at the port of Darwin and was considered to be an Unauthorised Maritime Arrival or (MA). On 22 July 2016, the applicant applied for a Safe Haven Enterprise Visa or SHEV and this application was refused on 20 June 2017. His application was then Fast Tracked at the IAA and on 5 March 2018 the IAA affirmed the delegates decision to refuse the visa. The applicant appealed to the Federal Circuit Court and one of his three applications (file # 1905855) was remitted to the AAT. On 6 November 2020 the Department lifted the bar, and the applicant made a fresh application for a SHEV. This application was refused on 6 November 2021. The applicant then applied for a review of that case.  

Nationality

14. The applicant claims to be a national of Pakistan and has provided the Department with documentation related to his nationality. Based on the assessment by the Department and based on the applicant’s oral and written evidence and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Pakistan and has assessed his claims against that country in relation to s 36(2)(a) and s36(2)(aa) of the Migration Act 1958.

15.  There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any safe third country for the purposes of s36(3) of the Act.

16.  The issue in this case is whether the applicant will be harmed in Pakistan for his ethnicity as a Pashtun, his political (imputed) opinion and his particular social group of older men unable to subsist and without support. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Claims

17.  The applicant’s claims across all three applications are summarised as follows: [1]

[1] AAT Folio

• The applicant owned a [company] in [City 1], and he was harassed and forced to pay bribes to the Nizamani people to avoid being harmed by them.

• In 2003 the Nizamani people asked him for more and more money, but he couldn’t pay it and he refused.

• He was warned and two days later he was physically attacked by men who beat him with a hockey stick and at gunpoint. They threatened to kill him. They broke his [body part], and he was hospitalised for ten days.

• He did not go to the police as the Nizamani people had infiltrated the police and his friend who was a police officer himself warned him not to make a statement to the police.

• He sold his [business asset] and relocated to Karachi where he set up a [different] business.

• For approximately 18 months to 2 years, he conducted his business without issue. He then started getting threats from the Muttahida Quami Movement (MQM) to pay bribes to them to ensure his safety. He refused and his [equipment was damaged] on multiple occasions.

• He sold his [business] and became unemployed as he was scared of the MQM.

• He will be targeted by the MQM and the Nizamani people if he returns.

• He would be targeted on the basis of his imputed political support of the West, and he will be seen as an infidel.

• Militants have infiltrated the government and he is at risk in all areas of Pakistan.

Tribunal Hearing

18.  The applicant explained that his father had a [business], and he took it over once his father passed away. The applicant said that the Nizamani people were like mafia and weekly or monthly they would come to him to get money from him. The applicant called them goons. A man named Dadan was the leader and he had two or three wives and lots of children.

19.  The applicant said they initially came to his workplace, and they wanted 20,000 to 50,000 Pakistani Rupees and this went on for four to five years. The applicant said they kidnapped his son but released him within an hour, he was only a small child at the time. The Tribunal told the applicant they did not recall ever reading about his son being kidnapped in his claims and the applicant said it was because he didn’t have any evidence, so he didn’t put it in his claims.

20.  They continued to harass him, and they came to his home and beat him with a hockey stick at gunpoint and his [body part] was broken. He has a steel plate in his [body part] now after this incident. They also [damaged his business assets]. He said he was going to make a complaint, but he was warned not to go to the police. The Tribunal asked him why he didn’t go to the police, and he said they were all corrupt and the Nizamani people control the police. His friend told him the Nizmani would make a complaint against him. The applicant said the Nizamani people are a caste, and they control the police.

21.  The applicant sold his [business assets] in about ten or twenty days and went to Karachi. He already had [number] brothers there. He said his wife didn’t like it in Karachi and has since moved back to [City 1]. The Tribunal asked if anyone had been bothering her and he said they don’t bother the ladies. A few months after arriving in Karachi the applicant started a [new business].

22.  The Tribunal asked the applicant about the problems he had with the MQM. He said they were violent and killed people and left them in gutters. They started asking him for money and he had to shut down his business and flee to Peshawar. He said he was scared of them, and he knows they were MQM because they speak Urdu and look different.  For two or three months he gave them money and then he sold his business as he couldn’t take it anymore.

23.  The applicant said that because he is a Pashtun he is persecuted because of the Taliban. People think because he is Pashtun, he is a Taliban.

24.  The applicant said he was fearful of returning to Pakistan after living in Australia for ten years as they would make a fake case against him because they are so corrupt. He said all of Pakistan is corrupt, full of poverty, no employment, the electricity gets shut down and he would not feel safe anywhere.

Country Information

25.  The Tribunal has before it the Departmental file, the applicant’s three visa applications, the submissions made on behalf of the applicant’s representative and the evidence he gave orally in the past and to this Tribunal. The Tribunal has also considered the available country information. [2]

[2] DFAT Country Information Report Pakistan 25 January 2022.

Violent and organised crime

2.49          Violent crime occurs across Pakistan, including armed robbery, assault, carjacking and kidnapping. According to UN Office on Drugs and Crime data, Pakistan has a homicide rate of 3.1 murders per 100,000 population, about average for the region and lower than the global average of 6.1 murders per 100,000 population. Islamabad has a lower crime rate than other major cities due to its large security presence. Crime rates in Lahore and Karachi have also dropped in recent years due to police crackdowns. Violent crime in rural areas and in Gilgit-Baltistan is generally lower.

2.50          Criminal gangs exist in Pakistan. Their activities include drug trafficking, kidnapping, extortion, human trafficking, and child sexual exploitation. Some are politically connected.

Pashtuns

3.13          The Pashtuns are an ethnic group native to Afghanistan and northwest Pakistan. Pashtuns are stereotypically fair skinned with light-coloured hair and eyes that distinguish them from other Pakistanis, although in reality Pashtuns are physically diverse. Pashtuns may also wear distinctive clothing, such as the red-and-black ‘Pashteen hat’, which has reportedly become a symbol of the Pashtun Tahafuz Movement (PTM). Pashtun culture emphasises tribal and family relations, as well as customary norms known as Pashtunwali. Pashtuns speak an Eastern Iranian language called Pashto. Most, but not all, follow Sunni Islam (see Turis, Bangash).

3.14          There are an estimated 20-25 million Pashtuns in Pakistan, the second largest ethnic group after Punjabis (see Demography). Pashtuns traditionally live among their own tribes and sub-tribes in Khyber Pakhtunkhwa and the former FATA, though many migrate to urban areas. The largest Pashtun community in the world lives in Karachi. Pashtuns also live in Baluchistan, Islamabad, Lahore and elsewhere.

3.15          Pashtuns are represented at all levels of society in Pakistan. They dominate employment in the transport sector in Pakistan and Afghanistan and are well represented in Pakistan’s security forces. The governing PTI party has a strong support base among Pashtuns in Khyber Pakhtunkhwa. Pashtun-majority areas have historically experienced high levels of tribal, intra-communal and politically motivated violence, a high concentration of military operations, and conflict-related displacement. However, the overall security situation for all Pakistanis, including Pashtuns, has (until recently) been improving in line with increased security across Pakistan.

3.16          Until 2018, those living in the FATA were governed under separate, extra-constitutional arrangements, which denied them some fundamental rights (see Political System). Residents of Khyber Pakhtunkhwa, including the former FATA, now have access to the regular judicial system, although the option remains to voluntarily refer disputes to traditional jirgas/panchayats under the Khyber Pakhtunkhwa Alternate Dispute Resolution Act (2020) (see Judiciary). In 2017 civilians living in the FATA were injured and lost access to land due to landmines left over from security operations.

3.17          Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ In areas where they are a minority, low-level societal discrimination against Pashtuns is common in the form of slurs and ethnic stereotypes. Pashtuns report frequent blocking of their CNICs when relocating (see CNICs and SNICs), which impedes access to property and assets. There are credible reports Pashtuns have been targeted for enforced disappearances, especially in conflict-affected regions such as Khyber Pakhtunkhwa and Baluchistan.

3.18          DFAT assesses Pashtuns in conflict-affected areas such as Khyber Pakhtunkhwa and Baluchistan face a moderate risk of violence by state security forces, including enforced disappearance and extrajudicial killings. Elsewhere in Pakistan, Pashtuns generally face a low risk of official and/or societal discrimination and a similar risk of violence to other ethnic groups in the same locations, although the risk increases if they come to the attention of authorities for any reason. Pashtuns involved with the Pashtun Tahafuz Movement (PTM) or the Awami National Party (ANP) face specific, heightened risks, as do Shi’a Pashtuns (see Turis, Bangash).

Findings

26.  The applicant has been in Australia for ten years and during that time he has been through multiple interviews and has reiterated his claims over and over since his arrival. He is now [age] years old and having some health issues. He has not seen his family (bar his son) in ten years.

27.  The Tribunal found the applicant to be a witness of truth and he did not embellish or waiver from his original claims. He did, however, claim his son who was very young at the time was kidnapped by the Nizmani people and this was a new claim. I give this very little weight in my assessment as it was not brought up before the hearing and did not form part of his original claims. To that end I do not accept that the applicant’s son was kidnapped for an hour or so and then returned.

28.  The Tribunal accepts that the applicant was targeted by the Nizamani people and had to pay them bribes in order to avoid harm to himself and his family. The Tribunal further accepts that the applicant did not comply with the Nizamani request for more money, and he was beaten with a hockey stick and his [body part] was broken. The Tribunal is satisfied that the applicant was targeted based on his ethnicity as a Pashtun.

29.  Further, the applicant was afraid to seek out police assistance as he believes that they are working with the Nizamani people.

30.  The Tribunal is satisfied that the applicant went to Karachi to start over but the MQM were asking him for bribes and a similar process began as what had happened with the Nizamani people.

31.  The Tribunal is satisfied that the applicant fears persecution based on his ethnicity as a Pashtun and his membership of a particular social group ‘Pashtun men in Pakistan’ and these are the significant reasons for the fear the applicant holds.

32.  The Tribunal is not satisfied that the applicant would be able to avail himself of state protection. DFAT assesses that state protection is limited: [3]

Pakistan’s formal legal framework provides for state protection of people’s property, lives, places of worship and religious beliefs. However, DFAT assesses that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level, and lack of political will. Some groups are denied adequate state protection on discriminatory grounds (for example, Ahmadis).

[3] DFAT Country Information Report Pakistan 25 January 2022.

33.  The applicant would not be able to relocate anywhere withing Pakistan to alleviate the fear he holds in his home area. DFAT reports that Pashtuns are the subject of ethnic stereotyping and linked to the TTP as the applicant stated in his evidence before the Tribunal.

Across Pakistan, ethnic stereotyping and the association of Pashtuns with the TTP has led to official discrimination and ethnic profiling. In February 2018, the Punjab government issued a notice asking, ‘the population of Punjab to keep an eye out for suspicious individuals who look like Pashtuns or are from the former FATA, and to report any suspicious activity.’ [4]

[4] DFAT Country Information Report Pakistan 25 January 2022.

34.  The Tribunal is satisfied that the country information is consistent with the applicant’s experience and that state protection would not be provided to the applicant as his ethnicity as a Pashtun makes him vulnerable in Pakistan.

35.  The applicant is now in his [age range] and unlikely to be able to readjust to life in Pakistan or to be able to find employment and subsist.

36.  For the reasons given above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in accordance with s 5J of the Act. In accordance with s 5H(1) of the Act, the Tribunal is satisfied that the applicant is outside his country of nationality and owing to a well-founded fear of persecution is unwilling to avail himself of the protection of that country. There are no exclusions as set out in s 5H(2) of the Act that apply to the applicant.

37.  The Tribunal therefore finds that for purposes of s 36(2)(a) of the Act, the applicant is a refugee.

38.  Given these findings it is unnecessary for the Tribunal to assess the applicant on alternative grounds.

DECISION

a.remits the matter of a SHEV application made on 22 July 2016 and 6 November 2020 (and bearing Tribunal review case number 1836987& 2108655) with the direction that the applicant satisfies s 36(2)(a) of the Act;

b.The Tribunal sets aside Tribunal review case number 1905855 made on 22 July 2016 with the decision refusing to grant a protection visa and substitutes a decision that the protection visa application is not valid and cannot be considered.

Nora Lamont
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…