2202607 (Refugee)

[2022] AATA 1973

2202607 (Refugee) [2022] AATA 1973 (24 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2202607

COUNTRY OF REFERENCE:                   India

MEMBER:Nicole Burns

DATE:24 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 24 May 2022 at 3:33pm

CATCHWORDS
REFUGEE – protection visa – India – member of particular social group – homosexual man – abuse and threats by family and friends – credibility – limited, vague and inconsistent claims and evidence – no relationships or encounters – delay in applying for protection – applied after student visa cancelled – drug use, criminal convictions, imprisonment and immigration detention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 33

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 24 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of India, applied for the visa on 2 December 2021.

3. The applicant appeared before the Tribunal via video link on 20 May 2022 where he gave evidence about the issues in his case.

4. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of India, there is a real risk that he will suffer significant harm.

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

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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–5LA, which are extracted in the attachment to this decision.

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT’s most recent country information report on India was published on 10 December 2020.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a [Age]-year-old man originally from Gurdaspur, the Punjab, in India. He came to Australia [in] September 2013 holding a student visa. He claims to be a national of India and has presented his Indian passport to the Department. Accordingly, the Tribunal accepts he is a national of India and that India is his ‘receiving country’ for the purpose of assessing his protection claims.

13. Initially the applicant set out his claims for protection in his visa application. In it he claimed, in summary, to be homosexual, and to have been threatened and verbally abused by his parents and friends when they found out, and that his father and relatives threatened to kill him if he returned to India as he had shamed them. He fears they will kill him on return to regain their honour. He states further that growing up in India he saw mistreatment of the LGBT[1] community since his childhood; that police, politicians and ‘every community’ in India do not accept LGBT people; and there is no place in India where the LGBT community are not mistreated.

    [1] Lesbian, Gay, Bisexual and Transgender

14. The delegate held several concerns about the applicant’s homosexuality claims due to limited evidence of such, his vague oral evidence at interview, and the significant delay in applying for protection (among other things). This led the delegate to conclude the applicant was not homosexual as claimed and that he did not face a well-founded fear of persecution on return to India on this basis.

15. In his oral evidence to the Tribunal, the applicant set out his background, current circumstances, reasons for leaving India, and extant fears if he has to return there, summarised as follows.

16. He said he came to Brisbane in September 2013 to study a Certificate III in [Subject]. However shortly after, in December that year he moved to Melbourne because his Indian friends at college in Brisbane made fun of him and called him names after he disclosed to them that he was gay. In Melbourne he was unable to enrol in another course (he did not elaborate), and his student visa was cancelled in 2015.

17. The applicant said in Melbourne he has worked as [an Occupation 1] at a [Workplace] and as [an Occupation 2], and lived in shared houses. For a period of time in around 2019 and 2020 he was homeless, after he started using heroin. He was arrested [in] February 2021 for shoplifting and sentenced to 20 days in prison.

18. After he was released from custody, [in] March 2021 the applicant said he decided to return to India and telephoned his parents, whom he had lost contact with during the preceding years, and advised them of his criminal matters, drug use and the fact he was gay. They were angry at him about being gay and they argued.  A few days later, on around 16 March 2021 the applicant said his father telephoned him and threatened to kill him because he was gay, telling him he had put their family through a hard time and they were ashamed and his relatives knew and were angry with him. Then on 11 or 12 April 2021 his father rang again, told the applicant that he was actually fine with his sexuality and asked him to return to India. However shortly after, the applicant received a phone call from his brother in India who told him his father was lying in an attempt to lure him back to India to kill him. His brother told the applicant his father was ashamed about his sexuality, in particular among their relatives. When asked who specifically, the applicant said his aunt and uncle who live on the same street as his parents in Gurdaspur. He is pretty sure his mother had told his aunt about his sexuality.

19. The applicant said after his brother told him his father wanted to lure him back to India to kill him he became very depressed, used methamphetamines (allegedly for the first time) and set the house where he was staying in, on fire. He was arrested, charged with arson and sentenced to 105 days in prison. He was released from criminal custody (the second time) [in] July 2021 and transferred to immigration detention, where he currently resides. The applicant confirmed that he has completed his sentences and has no outstanding criminal matters in Australia. He said he was given medicine to help him get off heroin in prison.

20. After he was released from prison the second time, in July 2021 the applicant said he called his parents but they did not answer his calls. He has not talked to his brother since April 2021, when he warned him not to come home (as his father wanted to kill him).

21. The applicant told the Tribunal he became aware he was gay from around 15 years of age but never had any sexual encounters or relationships with men.  Apart from one female friend at school, he did not tell anyone. He has not had any sexual encounters or relationships with men in Australia, claiming he became scared to do so after disclosing to his friends in Brisbane that he was gay in 2013. This was also why he has not told anyone in Melbourne that he is gay.

22. The applicant said he is scared his father will kill him on return to India because that is the only way to restore honour.

23. Having regard to the applicant’s claims and the material before it, the Tribunal has made the following findings with respect to his specific protection claims, considered below.

    Homosexuality claims

24. The Tribunal has considered the applicant’s claims to fear persecution on return to India in the foreseeable future from his father, other relatives and the community as a gay man. In doing so it has first considered if the applicant is a homosexual, as claimed. The Tribunal has a number of concerns about the applicant’s claims to be homosexual for the following reasons.

25. First, at hearing the Tribunal found the applicant’s claims about the inception and development of his purported homosexuality to be vague and lacking details. For example he told the Tribunal he first became aware he was gay in India when around 15 years of age but did not provide any further details or context. Additionally he told the Tribunal he decided when he arrived in Australia to explore his sexuality and told some Indian friends in Brisbane, who then made fun of him and called him names, prompting his moved to Melbourne. However his evidence was vague and general in this respect: he did not provide details about these friends, apart from saying they were Indian, and one of the three was female, or provide details about the circumstances in which he disclosed his sexuality to them, for example.

26. Second, although the applicant claims to be attracted to men, he has had no sexual encounters and/or relationships with men, including over the past eight or so years in Australia despite the relative freedom to do so here. Furthermore, apart from purportedly telling three or four Indian friends in Brisbane when he first arrived here, he has told no one he is gay. The Tribunal accepts he may be shy or find it difficult to meet same-sex partners or friends, however his lack of efforts, combined with the other concerns the Tribunal has with his sexuality claims (as discussed above and below), causes the Tribunal to doubt his claims in this respect.

27. Third, there are inconsistencies in his evidence, and changes in some key respects. For example in the protection visa application the applicant states his father and relatives threatened to kill him when they discovered he was gay. However at hearing he said it was only his father. When this discrepancy was pointed out at hearing the applicant said he suspects it was his aunt and uncle who encouraged his father to kill him, as his father only threatened to do so (over the telephone) a few days after he initially told him he was gay. However this does not explain why it states in his application form that relatives also threatened to kill him.

28. Additionally, according to information contained in the delegate’s decision record (a copy of which the applicant provided to the Tribunal on review) at interview the applicant said he telephoned his father in India a couple of times a week since he told them he was a homosexual on 12 March 2021, until after his father attempted to lure him to India to murder him sometime in April 2021. However at hearing the applicant said he only spoke to his father initially when he told them about his sexuality, a few days later (when his father threatened to kill him) and then on 11 or 12 April 2021 when his father pretended he was fine with the applicant’s sexuality and asked him to return to India. The applicant said this was the last time he spoke to his father. When this discrepancy was pointed out at hearing the applicant said he tried calling his father after being released from prison (the second time) but he never answered the phone. However this is different to what he told the delegate, who in their decision record questioned why the applicant continued to telephone his father and speak to him regularly, after his father had threatened to kill him, in the period before he was taken into criminal custody (the second time).

29. Fourth, the Tribunal found aspects of the applicant’s claims about his father’s reaction to his claimed homosexuality lacked internal consistency. For example on the one hand the applicant claimed his father wanted to lure him back to India to kill him, whilst on the other hand he said his parents did not want him to return to India. He also claimed his parents were deeply ashamed about his claimed homosexuality on the one hand, yet on the other said his mother told his aunt about it, which undermines his claims in this regard to a certain extent.

30. Fifth, the applicant did not apply for protection until December 2021, despite claiming to have been aware of his homosexuality in India prior to leaving the country in September 2013, and that LGBT persons in India face discrimination and mistreatment (as submitted in his protection visa application). At hearing the applicant said he did not apply for protection initially because he did not know that was an option until friends told him in 2019. Even if that was the case the Tribunal is also concerned by the applicant’s failure – as indicated in the delegate’s decision record – to mention he was gay, had been threatened with death from his father (or others) as a result, and feared persecution on return to India as a consequence at his compliance interview with a Departmental officer on 26 July 2021. At hearing the applicant said this was because he had just spent four months in prison and thought things may have been sorted out and everything would be fine if he went back to India. At that time he just wanted more time in order to talk to his family and if there were no longer any issues he planned to return home. However later when the officer told him if he did not apply for any visa he would be sent back to India he got scared and applied for a protection visa. The Tribunal is not persuaded by this explanation, particularly given if his father had threatened to kill him as claimed, it doubts he would assume everything was fine four or so months later.

31. For these reasons the Tribunal does not accept the applicant is a homosexual as claimed. It does not accept he was verbally abused by his parents and relatives in India on this basis, or friends in Brisbane, or was threatened (including with death) by his father and/or relatives as submitted. Given this finding the Tribunal finds the applicant does not face a real chance of serious harm from his father, relatives, the community or anyone else on return to India based on past threats and/or because he is a homosexual. It follows that the Tribunal does not accept the applicant will live as a gay man on return to India (or not do so out of fear of persecution as a gay man). Accordingly it finds he does not face a real chance of serious harm from anyone on the basis of his alleged homosexuality on return to India. His fears of persecution on this basis are not well-founded.

    Returnees and failed asylum seekers (including with a criminal conviction)

32. The Tribunal has considered if the applicant faces a real chance of serious harm from the authorities or others on return to India as someone with a criminal record in Australia and as a failed asylum seeker.

33. At hearing, the applicant confirmed he was arrested, charged and convicted for a shoplifting offence in March 2021 and released after 20 days in prison. He was then arrested, charged and convicted of an arson offence in April 2021 and released from prison 105 days later. He confirmed his sentences are complete and his criminal matters in Australia are finalised.

34. When asked at hearing, the applicant said he does not hold any concerns about returning to India due to his criminal history in Australia, noting the matters have been dealt with. He said his parents were somewhat upset when he told them about his criminal matters (and drug use) but were more upset about his alleged homosexuality. Given this and the fact he has not indicated any significant problems or concerns from relatives or community members due to his criminal history in Australia, the Tribunal finds remote the chance that he would face serious harm from relatives and/or the community due to his offending in Australia on return to India in the reasonably foreseeable future.

35. As discussed at hearing, country information indicates that double jeopardy is not imposed upon Indians who have expiated sentences abroad: section 300 of the Penal Code proscribes against police charging and courts trying people a second time in relation to offences already tried to conclusion and expiated abroad.[2] Based on such country information, and the fact the applicant has completed his prison sentences in Australia, the Tribunal is satisfied that he will not be of adverse interest to the authorities in India on return there in relation to crimes he committed in Australia.

    [2] The Code of Criminal Procedure, 1973 Act No. 2 of 1974, >

    Also as discussed at hearing, DFAT in their most recent country information report on India state that they are not aware of any evidence of mistreatment of returnees, including failed asylum seekers, by the Indian authorities.[3]

    [3] DFAT Country Information Report, India, 10 December 2020 at 5.39

36. Based on such country information and given the applicant does not have any claim to be of any adverse interest to the Indian authorities, the Tribunal finds the applicant does not face a real chance of serious harm from the authorities on return to India as a returnee, a failed asylum seeker and a failed asylum seeker with a criminal record in Australia on return to India in the reasonably foreseeable future. His fears of persecution on these bases are not well-founded.

1. 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 5J. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a).

   COMPLEMENTARY PROTECTION

2. Given this finding, the Tribunal has gone on to consider whether or not the applicant faces a real risk of significant harm for the grounds advanced and that arise if returned from Australia to India as required under Australia’s complementary protection provisions.

3. The Tribunal finds the applicant is an Indian national and that India is his receiving country for complementary protection assessment purposes.

4. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant will suffer serious harm from his father, relatives, friends, other community members or anyone else on the basis of being a homosexual, as it does not accept he is a homosexual as claimed. It also does not accept he faces a real chance of serious harm from the authorities or anyone else as a returnee, failed asylum seeker or failed asylum seeker with a criminal record in Australia if he returns to India now or in the foreseeable future. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows that the Tribunal does not accept there to be a real risk that the applicant will suffer significant harm from anyone for these reasons as a necessary and foreseeable consequence of the applicant being removed from Australia to India.

   [4] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]

5. Having considered the applicant’s claims singularly and on a cumulative basis and for all the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk he will suffer significant harm.

   CONCLUSION

6. 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).

7. 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).

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

   DECISION

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

   Nicole Burns
   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.

   …