2315717 (Refugee)
[2024] ARTA 889
•17 December 2024
2315717 (REFUGEE) [2024] ARTA 889 (17 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2315717
Tribunal:General Member L Hill
Date:17 December 2024
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – advocating freedom of speech – detention – torture – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024, ss 99, 106
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minster for Immigration and Border Protection v SZVFW [2018] HCA 30
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 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 national of China, applied for the visa on 12 May 2021. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
On 2 October 2023, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the delegate’s decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing.
Relevantly, subsection 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time and place then the Tribunal can proceed to make a decision without a hearing. Section 4 of ART Act defines a case event as including the hearing, or part of the hearing, of the proceeding.
On 28 November 2024, the Tribunal invited the applicant to a hearing at the Brisbane Registry, scheduled for 13 December 2024. Amongst other things, the hearing invitation advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was also asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal.
The hearing invitation also set out what would happen if the applicant did not appear at the scheduled hearing, that being that the Tribunal may make a decision on the review without taking any further action or may dismiss the application without any further consideration.
On 6 December 2024 and 12 December 2024, SMS reminders about the hearing were sent to the applicant’s mobile phone.
Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with subsection 379A(5) of the Act, and the notice has not been returned to sender. The Tribunal is also satisfied that SMS reminders were also sent to the applicant about the hearing. The Tribunal is satisfied that the applicant received appropriate written notice of the date, time and place of the hearing: paragraphs 106(5)(b) and (c).
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal allowed a period after the scheduled hearing time for the applicant to appear or contact the Tribunal. The applicant did not contact the Tribunal during this period. Accordingly, the hearing was cancelled due to the applicant’s non-attendance on 13 December 2024 at 10:15am AEST. The Tribunal is satisfied that the applicant failed to appear at the scheduled hearing: paragraph 106(5)(a).
Paragraph 106(5)(d) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the absence of the parties to the proceeding. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
As per EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023), it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing. In properly carrying out its duties, “the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing”.
Subsection 5AAA(2) of the Act states that ‘it is the responsibility of the non-citizen to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim’. In this regard, the Tribunal notes that:
·On 12 May 2021, the applicant lodged with the Department of Home Affairs (the Department) an application for a protection visa and provided his claims for protection.
·On 17 May 2021, the Department wrote to the applicant, acknowledging receipt of his valid application. He was advised that ‘all claims, supporting documentation and evidence should have been provided when you lodged your application’ but that he may bring ‘additional information [he] would like considered to [his] appointment for the personal identifiers or provide through ImmiAccount or by mail’.
·On 1 August 2023, the Department wrote to the applicant, requesting more information to help assess his application for a protection visa. In summary, he was advised that his delay in lodging his application along with a lack of key details in his claims including about the events in which he claimed to have been detained and tortured raises concerns about the genuineness of his claims. He was invited to provided further evidence in support, particularly copies of the statements he posted, details of the social media accounts where he posted the statements; and copies of any arrest warrants or charge sheets issued in his name. He was advised if he could not provide copies of documents or information about his claims, he should provide a detailed explanation of why he could not, and any efforts made to obtain the documents.
·At the time of the delegate’s decision on 20 September 2023, no further information or supporting documents had been received by the Department.
·On 19 October 2023, the Tribunal wrote to the applicant, acknowledging his application for review. He was advised that the Tribunal had requested the Department to provide all documents and files which they considered relevant to the applicant’s application. He was also requested to ‘provide material or written arguments for [the Tribunal] to consider… as soon as possible’.
·On 28 November 2024, the Tribunal wrote to the applicant inviting the applicant to attend a hearing. The hearing invitation requested the applicant to complete the ‘Response to hearing notice’ form and attach any additional information or new information which he wished the Tribunal to consider. Additionally, he was also asked to ‘provide all documents [he] intend[ed] to rely on to support [his] case by 6 December 2024.
To date, the applicant has not raised or indicated to the Tribunal that he wished to provide any additional information or new information, documents and/or submissions for consideration. Nor has the applicant provided any further information, documents and/or submissions relating to his claims for protection to the Tribunal.
The Tribunal is satisfied that the applicant has had an opportunity to present his case, and provided all the information and evidence that he considers important and relevant in support of his case; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that the subsection 106(5) of the ART Act has been met.
Given the particular facts of this case, that being the applicant’s failure to appear, the Tribunal has also considered the alternative option to dismiss the application. However, for the following reasons, the Tribunal has decided not to exercise its dismissal power pursuant to s 99 of the ART Act.
The exercise of the Tribunal’s power to make a decision on review without taking any further action to allow or enable the applicants to appear at a hearing was considered by the Minster for Immigration and Border Protection v SZVFW [2018] HCA 30. In that case, the exercise of power “was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to be futile”.
Mor recently in DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975, Horan J acknowledged that it remains within the area of the Tribunal’s decisional freedom to consider which of the available options is appropriate in the particular circumstances of each case, provided that the decision made has an evident and intelligible justification.[1]
[1] Singh v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1091.
In this case, as outlined above, the applicant has been provided with several opportunities to present his evidence and arguments in support of his application for a protection visa, however, to date, there has been no response from the applicant.
The applicant’s history of non-responsiveness, including his failure to provide additional information or new information, documents and/or submissions when invited by the Tribunal, or to attend the hearing, is consistent with his conduct before the delegate; and in these circumstances the Tribunal is satisfied that it is unlikely that the applicant will take up any further opportunities to engage with the Tribunal or the review process.
It follows, that the Tribunal is satisfied that given the particular circumstances of this case, it will exercise its discretion under s 106(5) of the ART to make a decision without holding a hearing rather than dismissing the application under s 99 of the ART Act.
CLAIMS FOR PROTECTION
The applicant’s claims for protection are set out in the ‘application for a protection visa’ lodged with the Department on 5 November 2018. In summary, the applicant claims:
·He is seeking protection and cannot return to China.
·The reason why he left China was because “I have been detained and I have been tortured in jail only because I post some statements of :Freedom of speech (sic)”.
·He has not experienced any harm in China.
·He came to Australia in 2018 to seek safety.
·He will suffer “physical and psychologically torture” if he returns to China.
·The authorities of China will not protect him if he goes back because “there is only one party in china and no freedom of speech, we not allowed to talk about hongkong freedom (sic)”.
·He is unable to relocate to avoid being harmed in China because “I am here in Australia, I don’t know where else I can go. There will be life threatening if I go back china (sic)”.
On 1 August 2023, the Department wrote to the applicant, requesting more information to help assess his application for a protection visa. He was advised to provide further information including any supporting documents in support of his claims for protection. No further information or supporting documents were received by the Department.
The Department did not invite the applicant to an interview.
On 20 September 2023, the delegate of the Minister made a decision to refuse to grant the applicant a protection visa under s 65 of the Act. The delegate was not satisfied that the applicant’s claims were genuine and concluded that he was not a person whom Australia had protection obligations as outlined in paragraphs 36(2)(a) or 36(2)(aa) of the Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
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.
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.
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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference (and receiving country)
The applicant provided the Department with a copy of the biographical/biodata page of his People’s Republic of China passport. The Tribunal is satisfied that the applicant is a citizen of China.
There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) of the Act does not apply.
The Tribunal finds that the receiving country is China; and on this basis the applicant’s claims have been assessed against China.
Does the applicant satisfy the refugee criterion for protection?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to persuade the Tribunal that all the statutory elements are made out.[2] It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claims, or to establish or assist in establishing the claims: s 5AAA. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant.[3]
[2] MIEA v Guo (1997) 191 CLR 559.
[3] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered the applicant’s claims for protection; however, it finds them to lack sufficient detail. There is no specific information such as dates and/or times, forums posted to, content of the posts or any other essential details to assist with determining the veracity of the applicant’s core claim, that because he posted “statements of freedom of speech” he has and/or will be harmed. There are also insufficient details in the applicant’s written evidence such as dates and/or times, locations or persons involved to conclude that his claims that he has detained and torture in jail are reliable or true. The Tribunal also finds the applicant’s statements that on return he will not be protected because there is “no freedom of speech” and they are not allowed to talk about “hongkong freedom” in China to be fragmented, unclear and insufficiently detailed. Nor is it evident on the information provided how his claims regarding past events in China would lead him to be harmed in the future including why such issues remain ongoing six years after his departure.
The Tribunal only has before it the limited information provided by the applicant in the application for a protection visa; and given its concerns with the information provided outlined above, the Tribunal is not satisfied that the applicant’s claims for protection are reliable or truthful.
The Tribunal does not accept that the applicant posted any statements relating to “freedom of speech” and that arising from such actions, he was detained and tortured in jail by anyone including the police and/or state authorities. The Tribunal also does not accept that the applicant holds “freedom of speech” and/or “hongkong freedom” and/or anti-government views or opinions or that he will be imputed with such views or opinions on return.
The Tribunal notes that in his application for a protection visa, the applicant states he is a Chinese Buddhist, which the Tribunal accepts. However, the applicant has not indicated nor is it evident on the material that he has experienced any problems on these bases in the past, nor expressed concerns about them in the future; and it follows that the Tribunal is not satisfied that such claims arise on the material.
Having considered the totality of the evidence, both individually and cumulatively, the Tribunal does not accept the applicant’s claims for protection in their entirety; and it follows that the Tribunal is not satisfied the applicant faces a real chance of harm, on these bases or for any other reason, should he return to China, now or in the reasonably foreseeable future.
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) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm.
As outlined above, the Tribunal has not accepted the applicant’s claims for protection in their entirety; and found that the applicant does not face a real chance of harm, on these bases or for any other reason, should he return to China, now or in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion;[4] and it follows that 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 China, there is a real risk that he will suffer significant harm.
[4] MIAC v SZQRB [2013] FCAFC 33.
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)(aa) of the Act.
Member of the same family unit
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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