1512311 (Refugee) [2015] AATA 3608 (4 November 2015)

DECISION RECORD
DIVISION:	Migration & Refugee Division
CASE NUMBER:	1512311
COUNTRY OF REFERENCE:	Malaysia
MEMBER:	Gabrielle Cullen
DATE:	4 November 2015
PLACE OF DECISION:	Sydney
DECISION:	The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 November 2015 at 5:43pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
1.  	
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 Immigration on 14 August 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
2.	The applicant, who claims to be a citizen of Malaysia, was born in Kuala Lumpa and departed Malaysia for Australia [in] November 2014. He applied for a protection visa [in] February 2015 and claims to fear return as he is ethnic Chinese and from those in the underground as he was involved unknowingly in illegal activities. He claims he will be killed on return and his family have been menaced and have moved from Kuala Lumpa as a result.
3.	The applicant was invited to attend an interview at the Department [in] July 2015. The applicant did not attend the scheduled interview.
4.	The delegate refused to grant the visas [in] August 2015 on the basis that the delegate was unable to verify his claims and obtain substantiating detail. He found as a result he was unable to be satisfied that the claimed fear of persecution is well-founded.
5.	The issues to be considered in this case are as follows.
•	Is the applicant credible as to his claims?
•	Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Migration Act?
•	Does the applicant meet the protection obligations under the complementary protection provisions of the Migration Act?
Criteria for a protection visa
6.	The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
7.	Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee. 
8.	A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b). 
9.	Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.   
10.	If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision. 
Mandatory considerations
11.	In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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
12.	The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.
•	The protection visa application of the applicant dated [in] February 2015, and identity documents. 
•	Oral evidence of the applicant provided at the Tribunal hearing on 4 November 2015.
•	Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
•	DFAT Country Report Malaysia dated 2 December 2014.
13.	For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The Applicant’s Claims
14.	The applicant claims in his protection visa application that he went underground gambling with a man named [Mr A]. He claims subsequently [Mr A] asked him if he wanted to earn some money and he helped him to carry some merchandise from shipside around midnight to the van, then drive the van and deliver the goods to a specified address. He claims he earned RM 100 so he was happy. He claims one night around 11.30pm he was waiting for the merchandise shipside for two hours when the police showed up and treated him very rudely. He claims they found his phone and wallet and grabbed him by the neck and clled him a “Chinese Pig”. He said he did not understand what they were saying as they were speaking in their language. He claims [Mr A] arrived 15 minutes later and the applicant told the police he worked for [Mr A]. [Mr A] asked him what he told the police and the applicant responded that he just told them he was his personnel. The applicant claims the police asked [Mr A] why he and the applicant were there at midnight and asked why they were waiting. He claims [Mr A] spoke to them and gave the police some money and then they went. He claims after the police went [Mr A] called a man who beat him (the applicant) and threatened that he not say anything to anybody about what happened that night.
15.	The applicant claims in his protection visa application that he was worked out that the police were conspiring with [Mr A] and wondered what he carried from the ship. He claims he secretly opened the merchandise and saw many packages of white powder in the box. He claims his thought was that it was heroin. He claims unexpectedly [Mr A] appeared and chased him but he jumped in the water and fled. He said he did not go home again but went to the house of a friend. He claims he borrowed money and fled to Australia. He claims they always menace his family. 
16.	He claims they will kill him for penetrating [Mr A]’s illegal activities.
17.	He claims he fears return as he is of Chinese ethnicity. He claims the [Mr A] racists could harm him and the Malaysian government supports the natives against the Chinese. He claims racial discrimination is widespread in Malaysia and the Chinese cannot obtain fair treatment in Malaysia. 
18.	At the hearing held on 4 November 2015 the applicant reiterated he feared return in Malaysia as a result of his Chinese ethnicity and as he fears the underground. He said there is no use calling the police due to his race.
19.	The Tribunal raised with him it had concerns as to the credibility of his claims in their entirety, and on the basis of the DFAT Malaysia Report questioned whether as he is of Chinese ethnicity he meets the Refugee definition and complementary protection provisions in the Migration Act.
Assessment of Past Claims
20.	On the basis of the applicant’s identity documents, including his passport and evidence provided at hearing the Tribunal accepts that the applicant is a national of Malaysia. Therefore for the purposes of s.36(2)(a) the Tribunal accepts that Malaysia is the country of nationality and for the purposes of s.36(2)(aa) the Tribunal accepts that Malaysia is the receiving country.
21.	As to the applicant fearing return for the reasons he claims, or he and his family having faced the difficulties he claims in Malaysia, for the reasons that follow the Tribunal does not accept that the applicant is a credible witness. For the reasons that follow it finds the applicant was never involved with [Mr A] or illegal and underground activities or faced any of the difficulties he claims at the hands of [Mr A] and the police. It finds the applicant’s testimony inconsistent, and lacking in detail. This leads the Tribunal to find that the applicant is not a witness of truth.
22.	Despite providing detailed claims as to why he fears return in his protection visa application because of his involvement in illegal activities as outlined in the paragraphs above, particularly with reference to [Mr A], when asked why he fears return at the hearing before me the applicant could only provide general statements, lacking in any detail. For example when he was asked why he fears return in Malaysia he said he could not go back because of an underground association. He said if he called the police they would go back to his old address. When asked to expand he stated that if he returns the underground will find him and he is discriminated because of his race. When the Tribunal then asked him to provide it with more detail and expand on his evidence as to why the underground and police want to find him; he stated that he helped do something for the underground and he cannot call the police. When again asked to explain more as to this; he stated he did not want to go back. When the Tribunal again asked him to provide it with more detailed evidence as to the underground activity he undertook and why he could not go back; he responded because he is racially discriminated against and it is no use calling the police.
23.	When I raised with him my concerns as to the credibility of his claims as his evidence appeared lacking in detail; he responded that he feared the underground. When asked if he had anything further to add he said no.
24.	On the basis of the above the Tribunal finds that the evidence presented by the applicant to the Tribunal at hearing was not sufficiently detailed to enable the Tribunal to be satisfied he has been involved with and/or faced the difficulties he claims with regard to underground and illegal activities in Malaysia. It expects if he faced the difficulties he claims as outlined in his protection visa application, including working for [Mr A], being question by police, being beaten by an associate of [Mr A] and finding illicit drugs; he would be able to provide this evidence at hearing similar in detail to that provided in his protection visa application. It expects if he was involved in underground activities he would be able to provide detailed evidence in this regard. In contrast the applicant’s evidence at hearing was general and lacking in any detail despite being asked to provide more detail of his underground activities and expand on his evidence on a number of occasions. This leads me to find the applicant was not involved with [Mr A] in the manner he claimed or face the difficulties he claims from [Mr A] or his associates in Malaysia or was involved in the underground or illegal activities in the manner claimed. This adds to my finding the applicant is not a credible witness.
25.	Further, the applicant indicated at the hearing before me that he travelled directly from his home where he had lived for many years in [an area of] Kuala Lumpa to the airport to come to Australia. He said he had lived at this home nearly all his life. However later in the hearing he said two days before he departed for Australia he lived at his friend’s house and did not go back to his home before he departed for Australia. He stated in his protection visa application that this is because he feared [Mr A] and his associates after finding the drugs. When the inconsistency in evidence was raised with him, he said he went to get something from his home on the way to the airport. I do not accept this response and expect if the applicant was fearful and did not return to his home as claimed he would not have stated earlier in the hearing that he travelled from his home to the airport on the day he departed for Australia. The applicant’s inconsistency in his evidence adds to my finding the applicant is not a credible witness.
26.	Further the applicant stated initially at the hearing before me that his [sibling] and mother lived at the family home in Kuala Lumpa and when asked whether they were currently living at this home he replied yes. He later said they lived in Selangor about an hour from Kuala Lumpa and had been living there since two days after he departed from Australia as “they” were looking for the applicant. He said as far as he knew his [sibling] and mother had not been back to Kuala Lumpa. When questioned as to the inconsistency he said they left both two days before he departed and then said two days after he departed. When the inconsistency was raised with the applicant he did not respond. The Tribunal expects if the applicant’s family fled to Selangor because of people searching for the applicant two days after or before he departed in 2014 and to his knowledge they had not gone back to the family home in Kuala Lumpa; he would not also indicated at the hearing before me that his family were currently living at their home in Kuala Lumpa. The applicant’s inconsistency in evidence leads the Tribunal to find the applicant’s family have not fled Kuala Lumpa as people are looking for the applicant. It adds to the finding the applicant is not a credible witness.
Credibility Summary
27.	For all the above reasons, considered cumulatively the Tribunal does not find the applicant to be a credible, truthful and reliable witness. The Tribunal is of the view that the applicant has fabricated claims and concocted evidence to achieve an immigration outcome.  On the basis of the above cumulative credibility concerns the Tribunal therefore does not accept that the applicant is a credible witness and cannot be satisfied on the evidence before it that the applicant is a truthful witness as to his claims. 
28.	In making these findings, the Tribunal has allowed for the possibility of discrepancies arising because of genuine lapses of memory, nervousness and the manner in which responses can differ depending on the nature and manner of which a question is asked.  It is also sensitive to the various cultural differences that can impact on an applicant’s responses to questioning, as discussed in the Tribunal’s ‘Guidance on the Assessment of Credibility’. The Tribunal does not accept that any of these factors explain or excuse the concerns which, cumulatively, have led it to find that the applicant is not a reliable witness as to these claims. 
29.	In making this finding the Tribunal accepts that some information has been consistent over time, such as the applicant is of Chinese ethnicity and he fled because he feared people from the underground or those involved in illegal activities. However the Tribunal considers that these matters are relatively easy matters to recall and his consistency in these matters does not outweigh the significant credibility aspects outlined above and does not lead the Tribunal to change its view that the applicant is not a credible witness. 
30.	As the Tribunal has found on the basis of the cumulative evidence before it that the applicant is not a witness of truth, it follows it does not accept that either the applicant or his family have been targeted by [Mr A] or people from the underground or the police or anybody else. It follows based on the applicant’s lack of credibility that it does not accept the applicant ever met a man named [Mr A], or went gambling with him or worked for him and his associates carting merchandise from a ship around midnight to a van and then driving a van to a specified address or unpacking the van or that he was paid for this service. It does not accept that he was ever questioned by police, called a “Chinese pig” by them, had his wallet or neck grabbed or was beaten by them. It follows it does not accept he saw [Mr A] pay some money to the police or was threatened by [Mr A] or threatened by an associate of [Mr A] or told not to say anything to anybody. It follows based on the applicant’s lack of credibility it does not accept he looked at the parcels and saw it was illegal drugs and heroin, or that [Mr A] saw him do this so he fled by diving into the water and went to live at a friend’s house in fear. It follows it does not accept as true that [Mr A] and his associates have threatened or menaced his family. It follows it does not accept his family have fled to Selangor at any time because people have come looking for the applicant or because they have threatened or harmed his family. It follows it does not accept that anyone from the underground, including [Mr A], his associates or [Mr A]’s racists wants to harm or kill him because he has knowledge of [Mr A]’s activities. It rejects his claims in their entirety that he has had any involvement with the underground or illegal activities in Malaysia, or that they want to harm him in any manner because he is Chinese and/or because of his claimed involvement in their illegal activities including being involved with illegal drugs. It follows based on his lack of credibility that he did go to the police for protection from the underground or [Mr A] as they are involved or because he does not believe they will protect him because he is of Chinese ethnicity.
31.	Based on the finding above and the applicant’s lack of credibility, it follows the Tribunal does not accept he or his family will be physically assaulted, killed, threatened, suffer injury, be beaten, abused, harmed or mistreated or face any difficulties he claims as he was involved in illegal activities or the underground or for any of the reasons he claims if he returns to Malaysia at the hands of the police, [Mr A], [Mr A]’s racists, [Mr A]’s associates or anyone from the underground. The Tribunal rejects his claims in this regard in their entirety.
32.	As a result the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future at the hands of the police, underground figures, [Mr A] and/or his associates and/or his racists or anyone due to his past involvement in the underground or illegal drugs or because he saw [Mr A] give money to the police or because he is of Chinese ethnicity or for any of the reasons he claims in this regard.
33.	Similarly based on my findings above and on the information before me I am therefore not satisfied on the basis of the evidence before me that there is a real risk that he will suffer significant harm on his return to Malaysia at the hands of the police, underground figures, [Mr A] and/or his associates and/or [Mr A]’s racists or anyone due to his past involvement in the underground or illegal drugs or because he saw [Mr A] give money to the police or because he is of Chinese ethnicity or  for any of the reasons he claims in this regard.
Chinese Ethnicity
34.	Notwithstanding the above, the Tribunal accepts that the applicant is of Chinese ethnicity. At the hearing before me the Tribunal referred to the DFAT Country Report - Malaysia, 3 December 2014, which indicates that ethnic Chinese in Malaysia do not experience discrimination or violence on a day to day basis and also indicated that information indicates that approximately 20% of the population in Malaysia are Chinese. When the Tribunal raised with him that this questions whether he meets the refugee definition or Complementary provisions in the Migration Act on account of his Chinese ethnicity; he stated that there are not many Chinese but many Indians. I do not accept this response as the information indicates that only 7% of the population are ethnic Indians, far less the the population who are ethnic Chinese.
35.	On the basis that the Australian Department of Foreign Affairs and Trade assesses that ethnic Chinese in Malaysia generally do not experience discrimination or violence on a day to day basis, and on the basis of the evidence before me the Tribunal does not accept that the applicant faces a real chance of persecution involving serious harm if he returns to Malaysia in the reasonably foreseeable future as he is of Chinese ethnicity at the hands of the police, natives, government, authorities, underground , [Mr A], his associates or anyone else. 
36.	Similarly based on the independent evidence and on the information before me I am therefore not satisfied that there is a real risk that the applicant will suffer significant harm on his return to Malaysia as he is of Chinese ethnicity at the hands of the police, natives, government, authorities, underground , [Mr A], his associates or racists or anyone else.

Conclusions regarding the Refugees Convention 	
37.	The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Malaysia in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future. 
38.	For the reasons given above, the Tribunal therefore is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
39.	The Tribunal has also considered whether the applicant is eligible for complementary protection. Findings have been made above in this regard. 
40.	The Tribunal has considered whether the combination of each of the individual claims raised by the applicant and his agent would together create a real risk of him being subjected to significant harm on return to Malaysia. Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in subsection 36(2A). 
41.	The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
42.	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
43.	The Tribunal affirms the decision not to grant the applicant a protection visa.

Gabrielle Cullen
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.
…
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 them 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
… 
(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.
…