2400637 (Refugee)

[2024] AATA 2267

2400637 (Refugee) [2024] AATA 2267 (15 March 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2400637

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:  James Lambie

DATE:  15 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 15 March 2024 at 10:38am

CATCHWORDS
REFUGEE – protection visa – Vanuatu – fear of harm from ex-partner – assaulted, tortured and almost killed – found after relocating – threats because of new partner – delay in applying for protection – no appearance at hearing – brief and general claims – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2, cl 866.211

CASES
BZADA v MIAC [2013] FCA 1062
Kavun v MIMA [2000] FCA 370
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT [1997] FCA 423

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 8 January 2024 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 Vanuatu, applied for the visa on 20 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under section 36 of the Act and subclause 866.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). .

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

2. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

4. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

5. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

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. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Background

1. The applicant claims to be [Age] years old and a national of Vanuatu.

2. The applicant entered Australia [in] August 2022 as the holder of a [Specified] visa.

3. On 20 September 2023, the applicant lodged an application for a Class XA, Subclass 866 (Protection) visa. She was subsequently granted a Class WC, Subclass 030 (Bridging C) visa in association with the lodgement of her protection visa application.

4. On 8 January 2024, the applicant was notified that the Department of Home Affairs had refused to grant her application for a protection visa in a decision made on the same date.

5. On 16 January 2024, the applicant applied for merits review of the Department’s decision of 8 January 2024 to refuse to grant her application for a protection visa.

Claims:

1. The applicant’s claims are summarised in the delegate’s decision and the applicant’s protection visa application.

2. The applicant claims she left Vanuatu because she feared harm from her ex-partner. While living in Vanuatu, she claims, she experienced domestic violence in the form of assaults from her ex-partner.

3. She claims that, since moving to Australia, she has received threats from her ex-partner because the ex-partner has heard about her living with another man.

4. The applicant claims she did not seek help in Vanuatu because she had been threatened that she would be killed if she sought help from the authorities.

5. She claims she attempted to move to another province but was found and harmed by her ex- partner. She claims she was assaulted and tortured and almost died.

6. The applicant claims that, if she returns, she will be tortured and killed.

7. The applicant does not believe the authorities would protect her as she had previously approached the authorities but no action was taken.

1. The applicant claims she would not be able to relocate as she believes she will be found, based on her previous attempts to relocate.

Evidence:

1. The Tribunal has before it a range of material, including, relevantly:

   ·The applicant’s protection visa application, which was lodged on 20 September 2023;

   ·The applicant’s identity documents being a copy of her passport issued by the Republic of Vanuatu provided to the Department;

   ·The protection visa decision record dated 8 January 2024 (the delegate’s decision record);

   ·The application for review form dated 16 January 2024;

   ·Department file [Reference] concerning her protection visa application; and

   ·Country information on Vanuatu, referred to below.

Country of reference / receiving country:

1. The applicant claims to be a citizen of Vanuatu. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Vanuatu is her country of nationality and also her receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

2. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

Hearing:

1. On 19 February 2024, the Tribunal wrote to the applicant advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing to be held 14 March 2024. The letter advised that if she did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable her to appear before the Tribunal. The letter was sent to the applicant by email at the email address provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response.

2. On 7 March 2024 and 13 March 2024, the Tribunal sent hearing reminders to the applicant by SMS to the telephone number provided in the application for review. That correspondence had not been returned from the applicant and the Tribunal received no response. At 9.20am on 14 March 2024, an officer of the Tribunal contacted the applicant by telephone to ascertain whether she intended to attend the hearing. The applicant told the officer she was not attending and terminated the call.

3. The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear. The applicant failed to provide any reasonable explanation as to

why he could not attend at the scheduled time. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

1. Accordingly, this matter has been determined on the evidence available to the Tribunal,

Assessment of claims and evidence, and findings:

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

   As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

3. The Tribunal has carefully considered the applicant’s claims as detailed in her application for a protection visa, both individually and cumulatively. The applicant did not take the opportunity to attend the hearing and did not provide additional information in support of her claims, even after having been advised of the delegate’s decision. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.

4. The applicant’s written claims were very brief and general and relate to the applicant having experienced domestic violence perpetrated by her former partner, again when he located her after she moved away, and to have received threats from him while she has been in Australia.

5. Had the applicant attended the hearing, the Tribunal would have asked her for further detail about her claims, which would have afforded her an opportunity to address their lack of specificity and to respond to the decision of the delegate. She would also have been able to provide further information and evidence.

6. On the material presented, the Tribunal has insufficient evidence as to:

   ·the identity of her former partner and a history of their relationship;

·particulars of the domestic violence she claimed to have experienced;

·any medical records or other material to support her claims;

·the date or dates upon which she sought assistance from the authorities or any other organisation, and the reason or reasons assistance was not made available to her;

·how to reconcile her conflicting claims that she did not approach the authorities for assistance because of threats from her former partner, and that she approached the authorities but they took no serious action to protect her;

·the identity of her current partner, and how she says her former partner became aware of this relationship; and

·details and evidence of the threats she claimed to have received from her former partner.

1. I have also noted that the applicant, despite having arrived in Australia [in] August 2022 , did not apply for a protection visa until 20 September 2023. Had she attended the hearing, I would have asked her why she had not lodged her protection visa application for more than a year after arriving in Australia and did not respond to the Department’s request to provide an explanation for the delay.

2. A delay in seeking protection can support an adverse credibility finding as well as finding that the applicants fear is not well-founded1. In Subramaniam v MIMA2, the court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fear of persecution. While a delay in making protection visa application by itself is not conclusive, it reasonably remains an indication in the applicant’s case that claimed fear of harm in this regard is not genuine. Had the applicant attended the hearing, the Tribunal would have asked whether he had a reasonable explanation for the delay in making the protection visa application.

3. The Tribunal has had regard to the following country information concerning gender-based violence in Vanuatu relevant to the applicant’s claims:

   Gender-based violence is prevalent in Vanuatu.60 per cent of women have experienced physical or sexual intimate partner violence, and 44 per cent have experienced this in the last 12 months. 33 per cent of women have experienced sexual violence from someone other than a partner. Domestic violence increased during the COVID-19 pandemic. The prevalence of sexual abuse against girls under the age of 15 is one of the highest in the world. The last national survey was conducted in 2011 by the Vanuatu Women’s Centre NGO. It found that 30 per cent of women were sexually abused before the age of 15; the majority of perpetrators were family members and partners. Sexual harassment is widespread in the workplace.

   Inequitable gender norms are common in Vanuatu. The aforementioned 2011 national survey found that 60 per cent of women surveyed believe there are valid justifications for men to beat their wives.

Domestic violence is a criminal offence punishable by up to five years in prison, a fine, or both. The law also calls for police to issue protection orders if there is a threat of violence. Rape is a crime punishable by up to life imprisonment. Spousal rape is not specifically criminalised; however, it may be prosecuted under assault and domestic violence laws. There is a ‘no drop’ policy, where police are not supposed to drop reported domestic violence cases. The law does not prohibit sexual harassment. Rape and domestic violence laws are not effectively enforced. Police largely consider these matters to be domestic issues and are

1 See Zhang v RRT and Anor [1997] FCA 423; Kavun v MIMA [2000] FCA 370.

2 [1998] FCA 305.

reluctant to intervene. Police and the courts rarely intervene or impose strong penalties in such cases. Police do not always promptly enforce court orders related to domestic violence. Most cases of gender-based violence are dealt with informally and not reported to the police. Women, especially in rural areas (where most of the population lives), are unaware of their legal rights or feared further abuse. The 2011 national survey found that 43 per cent of women living with partner violence have never told anyone about the violence and almost 57 per cent have never sought help from an agency. When women did seek help, they approached local chiefs (24 per cent), church leaders (23 per cent), health agencies (15 per cent) and finally, the police (10 per cent).

NGOs, including the Vanuatu Women’s Center, provide support services to survivors of gender-based violence including free legal services, counselling and a national free hotline to help women escaping abuse. During 2022, the national hotline received 30 to 40 calls a day. USDOS notes that NGOs working in this space lack sufficient funding to fully implement their programs. Freedom House similarly reports that government and civil society efforts to combat gender-based violence are inadequately funded.3

1. Because the applicant did not appear and provide evidence as to how and when she had experienced domestic violence, if or when she had sought assistance from the authorities, NGOs, church leaders, health agencies or others, and whether and why she been unable to obtain assistance, the Tribunal is unable to be satisfied that there is a real chance that on return to Vanuatu, either now, or in the reasonably foreseeable future, that the applicant would suffer serious or significant harm.

   Cumulative claims

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

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

1. The Tribunal has considered the applicant’s claims in terms of complementary protection.

2. Having regard to the findings of fact above, the Tribunal cannot accept that she left Vanuatu because she feared for her physical safety or that she cannot return to Vanuatu out of fer for her physical safety.

3. In view of these findings, I am not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Vanuatu now or in the reasonably foreseeable future. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, as well as having considered her personal circumstances, I am not satisfied that the applicant will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment, or she will be subjected to degrading treatment or punishment if she returns to Vanuatu now or in the reasonably foreseeable future.

3 Department of Home Affairs, Country of Origin Information Services Section, Thematic Paper: Gender-based Violence in the Pacific Region (5 May 2023), pp 13-15 [internal references omitted].

Conclusion: Refugee Criterion

1. Considering all of the circumstances above, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason, including race, religion, nationality, political opinion or membership of a particular social group). Her fear of persecution is not well-founded as required by s.5J of the Act and therefore she is not a refugee within the meaning of s. 5H.

Conclusion: Complementary Protection

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

Overall conclusion

1. For the reasons 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).

2. 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).

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit of 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.

James Lambie Senior 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.

…