2315041 (Refugee)

[2024] AATA 1287

2315041 (Refugee) [2024] AATA 1287 (19 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2315041

COUNTRY OF REFERENCE:                   Fiji

MEMBER:  Mr S Norman

DATE:  19 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2024 at 10:22am

CATCHWORDS
REFUGEE – protection visa – Fiji – lack of economic opportunity – study and work in Australia – economic disadvantage not prescribed reason – late claim of fear of harm from second husband – no contact since applicant’s departure – vague claims and evidence – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 8 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Fiji, applied for the visa on 15 August 2023. The Department delegate’s decision was lodged with the Tribunal.

2. The applicant appeared before the Tribunal on 18 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s witness ([Ms A]). Also in attendance was the applicant’s support person ([Mr B]). The Tribunal was assisted by an interpreter in the Fijian and English languages at hearing.

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 (see Attachment).

Mandatory considerations

1. 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

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

   The applicant’s receiving country:

2. The applicant lodged a photocopy of the bio-data page of her Fiji passport with the Department (expiry date: [2032]1). Based on this evidence, the Tribunal accepts the applicant is a citizen of Fiji and that Fiji is her receiving country.

   The applicant’s migration history:

3. The applicant claimed to have lawfully departed Fiji in ‘October 2022’;2 and she arrived in Australia on a ‘work visa’ in ‘October 2022’.3 She also said she travelled to Australia through the Pacific Labour Scheme. The Tribunal accepts this to be correct.

1 PDF – p.21 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database).

2 PDF – p.10.
3 PDF – p.10.

1. The applicant had referred to her ‘life in [Country]’4 in the Protection visa form, but the [Year] year old applicant also said she had not travelled other than to Australia and Fiji in the last 30 years.5 The Tribunal accepts the applicant had not travelled other than to Australia and within Fiji in the last 30 years.

   The Tribunal’s assessment of material claims:

2. The Christian applicant ([DOB]), claimed to have been born in [Town 1], [Province], Fiji6 - though she most recently had resided in [Village], [Town 2], [Province].7 She claimed to have married for a second time on [Date],8 and her spouse remained living with his family in [Town 3].9 The applicant’s [children] resided with her own parents in [Village], [Town 2], [Province] (some 25kms from the second husband’s family, in a straight line).

3. The applicant said she was able to contact family outside Australia via social media.10 At hearing, the applicant conceded the only topics discussed, in the around 16 months since she arrived in Australia, was (words to the effect) about each other’s wellbeing, and her children’s education (she claimed her [children] attended school near her parent’s village and where they both lived). The applicant also lodged evidence of educational expenses, a reference letter, and Certificates and evidence about her children. The Tribunal accepts this to be correct.

4. Regarding education, the Tribunal notes the country information stated:

   2.16 School education is compulsory until age 15. The Government provides free education but costs such as uniforms are usually not covered. Enrolment is universal, even in outer islands (though some students will move and stay with extended family to pursue secondary or tertiary education). Literacy is almost universal. Schools are mostly provided by religious organisations but receive government subsidies and teach a government curriculum. In-country sources told DFAT teacher quality is high overall … 11

5. Given the country information, the Tribunal accepts the applicant’s [children] may access (principally) free education.

   The lack of economic opportunity in Fiji:

6. In the Protection visa (PV) form, the applicant claimed:12

1. In writing, the applicant had also said the ‘rich are getting richer and the poor are getting poorer’, and that Australia offers a far greater opportunity for her.13 At hearing, the applicant

4 PDF – p.13.

5 PDF – p.11.
6 PDF – p.4.
7 PDF – p.7.
8 PDF – p.20 (Certificate of Marriage).
9 PDF – p.5.
10 PDF – p.6.
11 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
12 PDF – from p.13.
13 PDF – p.14.

said she had worked in Fiji from 2017-2020/2021 as [an Occupation] in [Town 3], but she had lost this permanent work due to COVID-19. From that time (2020/2021) until she travelled to Australia in October 2022, she said she was unemployed. She also said she is now the ‘chief bread winner’ for her family in Fiji and she sends remittances.

1. That being said, the country information, the gist of which was put to the applicant at hearing, stated:

   2.7 The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours…

   2.8 Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.14

2. Regarding employment and the pension, the country information stated:

   2.18   Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. …

   2.19    The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. … According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.

   2.20   The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.

   …..

   2.22   The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. …15

And:

2.23iTaukei generally have large kinship networks with extended family often

providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities…16

And:

14 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

15 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
16 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

3.10 iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital…17

1. At hearing, the (iTaukei) applicant also explained she was nearing completion of a ‘[Certificate III] course’ in Australia (anticipated completion date May 2024), and the Tribunal accepts this to be correct. The Tribunal will also accept the applicant lost her employment in Fiji in 2020/2021 due to the downturn in the Fiji economy principally as a result of the COVID-19 pandemic, though the more recent country information indicated the Fiji economy (and in particular tourism) had now improved. Also, when the applicant lost employment, many iTaukei were generally able to return to their traditional villages and participate in subsistence living communities (and the applicant was able to live in her parent’s village home).

2. At hearing, the Tribunal then noted that none of the applicant’s claims, nor the country information considered, appeared to indicate that an essential and significant reason she feared harm in Fiji, was for a prescribed reason; and neither did it appear (ie) there would be a real chance that anyone in Fiji would have any intention to harm her personally should she return.

3. Regarding, the economic disadvantage of returning to Fiji, the applicant did not materially comment – and the Tribunal accepts the applicant’s prior work experience in Fiji and/or her new vocational skills soon to be completed, should enhance her ability to find work on return to Fiji (though this is also discussed below).

4. After then considering the evidence, the Tribunal finds the applicant does not have a real chance of suffering serious or significant harm in Fiji, for any of the claims discussed above.

   The claimed fear of harm from the second husband:

5. At the end of the hearing, and for the first time, the applicant said she feared harm from her second husband in Fiji.18 Earlier in the hearing, and not wishing to make her case, the Tribunal eventually ascertained the applicant was married and [children] arose from that union. After her divorce from this first husband, the applicant then married for a second time in 2021. Earlier in the hearing, the applicant said her second husband did not treat her [children] well ([Ages and genders]). Therefore, and since travelling to Australia, the applicant’s [children] had lived with her parents in her home village and the second husband lived with his family in [Town 3] (some [Distance]kms distance in a straight line). The applicant also said she and her second husband had separated. The Tribunal accepts this to be correct.

6. The country information stated:

   3.51 A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. …

   …..

   3.57 … DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.19

And:

17 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

18 See s.423A of the Act.
19 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

2.34 Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large- scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem … Accusations of police violence are commonly reported and regularly investigated … 20

1. When discussed, the applicant then said that when contacting her parents and children in Fiji, nothing apart from (words to the effect) ‘each other’s well-being’ was discussed. Also, the second husband had not contacted her [children] or the applicant’s family, since the applicant had arrived in Australia.

2. Respectfully, it sometimes proved difficult to elicit the applicant’s claims at hearing and the Tribunal was not able to identify why she feared harm from the second husband, other than the ‘split’ may not have been amicable. However, nothing the applicant said, nor (ie) the evidence of a lack of contact set out above, satisfied the Tribunal the applicant had a real chance of suffering serious or significant harm in Fiji, from the second husband or anyone either associated with or related to him or his family.

   The applicant’s religious practise:

3. By letter dated 21 November 2023, from a Senior Pastor in the [Church] in Australia, it was claimed the applicant was an active member of the [Church] in Sydney, that she joined as a youth member in Fiji in 2010, that she remained committed to the church, that she is now a member of the Praise and Worship team, that she is vocal on having things done in the right way.

4. Regarding religion, the country information stated:

   The constitution establishes a secular state and protects freedom of religion, conscience, and belief. It also mandates the separation of religion and state. The constitution prohibits discrimination based on religious affiliation, and laws make inciting hatred or “disaffection” against any religious group a criminal offense. Religious groups must register with the government.

   …..

   Religious affiliation runs largely along ethnic lines. According to the 2007 census, most indigenous Fijians, who constitute 57 percent of the population, are Christian. Most Indian Fijians, who account for 37 percent of the total population, are Hindu, while an estimated 20 percent are Muslim and 6 percent Christian. Approximately 60 percent of the small Chinese community are Christian, while the small community of mixed European and Fijian ancestry is predominantly Christian.

   …..

   There is no required religious instruction for children or youth. Private or religious groups sometimes own or manage school properties, but the Ministry of Education administers and regulates the curriculum. Religious groups have the right to establish, maintain, and manage places of education, whether or not they receive financial assistance from the state, provided the institution maintains educational standards. The law permits non-compulsory religious instruction in all schools, enabling schools owned and operated by various religious denominations but receiving government support to offer religious instruction. Schools may incorporate religious elements, such as class prayer, as long as they do not require teachers to participate, and students may be excused if their parents request it. The government provides funding and education assistance to public schools, as well as schools owned and operated by religious organizations, on a per-pupil basis. The law states that schools must remain open to all

20 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

students, regardless of religious and/or ethnic origin. According to the law, the government ensures free tuition for primary and secondary schools.21

1. When discussed at hearing, the applicant said that through the church in Sydney, she may assist with the feeding of the poor within the church community, and she assisted with church services and she had helped the elderly.

2. However, there was no claim the applicant feared harm arising from any of these activities either in Australia or Fiji, and neither did any country information considered satisfy the Tribunal the applicant had a real chance of suffering serious or significant harm for any of her religious practise or activities either in Australia or Fiji, should she return to Fiji.22

   The applicant’s work injury in August 2023:

3. At hearing, the applicant confirmed the evidence of her witness, that she had injured herself at work in Australia in August 2023, and that she currently was receiving physiotherapy (which treatment was to cease in February 2024). As noted at hearing, and regarding health, the country information stated:

   29.11     Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.

   29.12     Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.23

4. Though discussed at hearing, there was no indication the applicant feared being denied the health care normally available to Fiji citizens should she return. Based on the country information, the Tribunal accepts the applicant would have access to that health care available to Fiji citizens in Fiji. Further, the Tribunal is not satisfied the applicant would have a real chance of suffering serious or significant harm in Fiji, for reason of her health.

5. The Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji, for any reason discussed above.

   Failed asylum seeker:

6. The country information stated:

   5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society.

21 US Department of State, 2022 Report on International Religious Freedom: Fiji.

22 For instance, see DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022; and US
Department of State, 2022 Report on International Religious Freedom: Fiji.
23 DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.

1. When discussed at hearing, the applicant said (again words to the effect) that if she was returned to Fiji after being denied a Protection visa, she may not be able to find work. The Tribunal noted that many people would return from Australia to Fiji (both voluntarily and involuntarily) and the country information before the Tribunal did not indicate (ie) that such persons were denied work, or otherwise subject to any harm, on their return.

2. It again proved difficult to elicit the applicant’s reasons for the claimed fear. She indicated she was the principal bread winner for her family in Fiji, and she needed to pay for her children’s education (though the Tribunal notes that primary education is principally provided free in Fiji).

3. That said, given the applicant’s prior work experience, given her new vocational skills (the nearing completion Certificate III course in Australia), and given the improvement of the Fiji economy since the COVID-19 pandemic, the Tribunal is satisfied the applicant may find work commensurate with her skills in Fiji.

4. However, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji, if returned as a failed asylum seeker.

5. For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal considered the alternative criterion in s 36(2)(aa). For the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

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

DECISION

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

Mr S Norman 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.

…