1514384 (Refugee) - [2015] AATA 3899

1514384 (Refugee) [2015] AATA 3899 (1 December 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1514384
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Sean Baker
DATE:1 December 2015
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 December 2015 at 6:42pm

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.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa [in] September 2015. The delegate refused to grant the visa on the basis that the applicant had not provided enough detail about his claims for the delegate to be satisfied that the applicant had a real chance the applicant would be subject to persecution on return to Fiji, nor that there was a real risk the applicant would suffer significant harm on return to Fiji.
CRITERIA FOR A 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 (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 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).
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.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.
CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has established a basis for finding either that there is a real chance the applicant would be subject to persecution on return to Fiji, or a real risk the applicant would suffer significant harm on return to Fiji.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In his application for protection the applicant states that he is of Fijian ethnicity and Christian faith. He seeks protection so he does not have to return to Fiji. He states that he left that country for a better life, and he thinks that if he returns he does not feel safe at all because he’s afraid he will be killed. He states he thinks he will be harmed or mistreated on return but does not give any details. He thinks the authorities will not protect him but does not give any details. He states that he experienced harm in that country but does not give details.
The applicant was interviewed by the delegate and said that if returned to Fiji he will be dead, intimated that it was of a personal nature but did not provide any further details.
At hearing I explained to the applicant the tests I must apply in considering his application for review. He confirmed that he had come to Australia on [a visa] when he was [age]. His mother is an Australian citizen and his siblings are all permanent residents. His father passed away [number] months ago and he has no other relatives in Fiji. He returned briefly to Fiji in 2001 to spend some time with his father and completed Year [level] there and then returned to Australia in 2002 and has not returned to Fiji since then.
He confirmed that he had been convicted in Australia of a number of criminal offences. He said that since he has got out of jail he has been working ever since, doing [occupation]. He confirmed that his [visa] had been cancelled. He was detained and taken to [a detention centre] and was then taken to [another detention centre] about a month and a half ago. We discussed why he had been unable to apply for a bridging visa.
I asked the applicant why he feared return to Fiji. He said that he could not return to Fiji. I asked him if he could tell me about that. He said that he had had an interview with the delegate and told him the same thing; if he has to go back it’s pretty much his head. He had told the delegate he couldn’t go back. I asked if he could give me any further detail and he said not really.
I explained to the applicant that I had to make a decision based on the claims that he put forward. He reiterated that if he goes back he will get killed. I asked if he could tell me why he thought this and he said he could not really tell me that. I asked if this was because he did not know or he could not say and he said probably both.
I asked if he had been charged, convicted or committed any crimes in Fiji. He said no, that he was only a kid when he left. I noted that he had claimed to have experienced harm in the past in his application and asked if he could tell me about that. He said no, he could not share that with me.
I asked if he believed the Fijian authorities would protect him from the claimed harm. He said they would not. I asked him why he believed this and he said that he could not give me that reason.
I reiterated that it was for the applicant to make his case in as much detail as necessary to satisfy the decision maker of the claimed fear of harm. I reiterated that the process was a confidential one that would not be shared with anyone in Fiji or Australia. I asked again if he could provide any detail about the things I had asked him about. He said that he really had nothing much to say about it.
I then discussed with the applicant country information about the situation in Fiji. I noted that the information I had seen from the Department of Foreign Affairs and other sources (see below) did not indicate that people in the situation of the applicant had a real chance or real risk of being harmed on return – Fiji now had a functioning government, functioning police and judiciary, and there was not general and endemic violence. I asked if he wished to comment on this or provide any details about his situation and why it may be different from this assessment. He said he had nothing to say.
I then discussed the entry and exit procedures for Fiji. I asked the applicant if his last held Fijian passport had expired and he said it had. I asked if he has spoken with Fijian authorities about renewing his passport. He said that an Australian immigration official had told him about 5 months ago that he was not allowed to renew his passport, could not apply for a new passport or a new visa. I asked if he had had contact with Fijian officials. He said he had nothing to do with Fijian officials, and they have nothing to do with him.
I outlined the country information which indicates that he would have to apply for a Certificate of Identity, which would allow him to travel and enter Fiji. He would be questioned at entry by border officials and would be required to apply for another passport. I noted that on the information before me I may find that he would not face any harm in this process or because of this mode of entry to Fiji. I asked if he had any concerns about returning to Fiji in this manner. He said that he had already given me an answer to this question.
On pressing the applicant to provide more detail of his claims, he asked for an adjournment for two weeks. I asked why he needed an adjournment and he said that he had only been told of this hearing the day before, he had not had time to prepare, and if I gave him two weeks he could seek legal advice and maybe tell me in more detail. I noted that he had had an opportunity to speak to the delegate, and he now had a further opportunity to disclose any details of his claims, but had not provided any more than the most vague and general statements. He said he could give more detail in two weeks if I gave him an adjournment. I said to him that as it currently stood I was not minded to give him an adjournment because he had not provided any details or clear reason why he could not provide details about his claim now but needed two weeks to do so. He did not provide further reasons or details. I indicated that as it stood I was not minded to provide an adjournment.
The applicant has not provided any further information, to the Department or Tribunal.
Consideration
Identity and nationality
The applicant provided a number of Fijian and Australian identity documents to the Department, including his previous [number] expired Fijian passports, and [State] driver’s licences. On the basis of this information and with no information to the contrary, I accept that the applicant is who he says he is, and is a national of Fiji. I find that Fiji is his receiving country, and I have assessed his claims against Fiji.
The applicant stated that he did not have a right to enter and reside in any third country. There is no evidence before me which indicates otherwise and I so find.
Country information
I have had regard to the Department of Foreign Affairs and Trade (DFAT) country report – Fiji dated 14 April 2015. This sets out the recent elections which were widely considered a reflection, though not perfect, of the populations wishes, the governance and human rights structures, and the security situation, which notes that Fiji is generally stable and secure, security services are well resourced and effective, and that crime rates are moderate.
The U.S. Department of State Country Reports on Human Rights Practices for 2014 – Fiji, summarises the situation in Fiji thus:
Following eight years of military rule, Fiji held general elections on September 17 in accordance with the constitution promulgated in 2013. In a contest deemed credible and “broadly reflecting the will of the Fijian people” by the Australian-led Multinational Observer Group, citizens elected 50 new parliamentarians. Josaia Voreqe (Frank) Bainimarama’s Fiji First Party won 32 of the 50 seats and he was sworn in as prime minister. Bainimarama led a bloodless coup in 2006. In 2009 his interim government abrogated the existing constitution and then ruled by decree until national elections returned the country to a constitutional republic during the year. Civilian authorities regained effective control over the security forces after the general elections.
The leading human rights problems included the following: restrictions on freedoms of speech, assembly, and movement; government harassment and intimidation of the media, political opponents, nongovernmental organizations (NGOs), and human rights and labor activists; and restrictions on trade union and collective bargaining rights as well as severe limitations on the ability of workers in certain sectors to strike.
Other human rights problems included cases of police and military abuse of persons in custody, poor prison conditions, interference with judicial independence, government corruption, violence and discrimination against women, sexual exploitation of children, and deep ethnic divisions.
The government failed to prosecute or punish some security forces officials who committed abuses, but it prosecuted or punished most officials who committed abuses elsewhere in the government. Impunity was a problem.
In relation to exit and entry procedures, the DFAT country report – Fiji dated 14 April 2015 states:
Exit and Entry Procedures
5.33 A valid travel document and appropriate entry visa for the intended destination is required for entry and exit to and from Fiji. The Fijian Department of Immigration website maintains up to date information on Immigration and Citizenship requirements ( In addition, Airports Fiji Limited maintains an up to date website which includes border control requirements and processes (
5.34 The Passport Division of the Ministry of Immigration is responsible for the determination and issuance of Fiji passports to Fiji Citizens under the Fiji Passport Act 2002. Fiji Passports are issued to those who have Fiji citizenship through birth, registration and naturalization.
5.35 Fijian Nationals who have lost, or do not have a Fijian passport must apply for a Certificate of Identity (a one-way travel document into Fiji only) at a Fijian embassy or consulate abroad. Fiji Embassy and consulate services are available at the following website (
5.36 An exception to the Certificate of Identity one way travel requirement was made when Fiji ran out of passports (this was experienced in 2012 and 2014) and Certificates of Identity were used for both outbound and inbound travel.
5.37 To be issued a Certificate of Identity applicants must provide;
·a police event report and a statutory declaration signed and stamped by a Justice of Peace (JP) explaining the event leading to loss/theft/damage; and
·other required documentation including a copy of birth certificate, marriage certificate, and name change certificate.
5.38 Upon arrival in Fiji, border officials check the details of the Certificate of Identity, confirm bona fides, register the document number, name and date of birth and advise that the document is not valid for further travel. The document is also seized by Immigration officials at the border and the bearer is required to go to Immigration and apply for a new passport.
5.39 For Fijian Citizens returning on their Fijian Passport, the border official checks and registers the passport number, name and date of birth of the bearer.
5.40 All inbound and outbound passengers (including Fijians) are checked against the Oracle system, which includes a ‘Stop Watch’ List (including, for example, entries based on court orders to stop departure, or alerts from Customs if the passenger has outstanding tax debts).
5.41 In addition to the Oracle system, Fiji Immigration Services and Border Security have installed an Integrated Border Management System (IBMS). IBMS integrates with digital and biometric passport systems compatible with International Civil Organisation (ICAO) standards to enhance the level of security at the border. It is also compatible with the Australian Advanced Passenger Information System and Advanced Passenger Processing applications that advance passenger lists to airlines while conducting watch list processing.
Consideration of claims and evidence
As I stressed to the applicant, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. In this case, despite several opportunities, and despite me attempting to elicit information from him, the applicant has only provided the most general and unspecific claims about his feared harm on return to Fiji.
The applicant states that if he returns to Fiji he will not be safe, and is afraid he will be killed. He has not provided any more detail than this, either in his application for protection or at the hearing, despite him having a number of opportunities to do so. I do not accept that this is due to his lack of legal representation or that he was not made aware of the hearing until the day before. I understand the difficulties that self-represented applicants face in complex procedures, but at the hearing he was provided with information about the relevant law and many opportunities to make his claims in detail. He did not do so. He did not explain why he required legal representation to provide even some detail of his claims. I do not find his reasons for requesting an adjournment compelling and did not provide an adjournment.
I do not accept that the applicant was only made aware of the hearing the day before – the invitation was sent to the centre and there is no information on file that it was not delivered to the applicant by staff. I have considered the applicant’s claim that he was not provided with it until the day before but I do not accept this given the information on file. I note that I also have some concerns that the applicant may have attempted to delay the process by seeking an adjournment, and this causes me to further doubt his claim that he was not made aware of the hearing until the day before.
I have significant sympathy for the situation the applicant finds himself in. From his perspective, he had been attempting to turn his life around after time in prison, and was gainfully employed. His entire family is in Australia; he has not been to Fiji in [number] years and does not appear to have any support there. Returning would be very difficult for the applicant. However, I find that these difficult circumstances do not give rise, on the evidence before me, to a real chance or a real risk of the applicant being seriously or significantly harmed on return.
I accept that the applicant is of Fijian ethnicity and Christian faith. He has not claimed to fear harm on either of these bases, and on the information, including country information before me, I do not accept that he faces harm on the basis of his ethnicity or religion, or any reason associated with these.
I accept that the applicant’s Fijian passport has expired and that he would most likely return on a Certificate of Identity. I find that he would be granted such a Certificate or other travel document, and that whilst he would be questioned at entry, there is no basis, either in his limited evidence, when considered with the country information about this process, for finding that he would be harmed for any of the reasons set out in s.5J(1)(a) either on entry or afterwards because of his method of arrival.

The applicant has provided only general claims, despite several opportunities to provide further evidence. In these circumstances, and on the limited evidence before me, I do not accept that the applicant will be killed, or it will mean his head if he returns to Fiji. Taking into account his very limited evidence, and the country information discussed with him, I do not accept that he will be harmed or mistreated on return. I do not accept that the authorities will fail to protect him. Further, on his very limited evidence I do not accept that the applicant has suffered any harm in Fiji in the past, for any reason. I do not accept the claims of harm made by the applicant, and I do not accept that the applicant will face harm for any of the reasons set out in s.5J(1)(a) on the very limited evidence he has provided. For this reason, I am not satisfied, on the evidence before me, that the applicant faces a real chance of serious harm amounting to persecution, now or in the reasonably foreseeable future for any reason if he returns to Fiji. I am therefore not satisfied that the applicant has a well-founded fear of persecution for the purposes of s.5H(1)(a) and is therefore not a refugee under s.5H.
I have considered the applicant’s claims against the provisions of s.36(2)(aa). On the limited evidence before me I have not accepted the applicant’s claims. I accept his ethnicity, religion, and that he would enter Fiji on a Certificate of Identity or other temporary travel document as found above, but I find that these facts do not, on the information before me, lead to a real risk that the applicant will suffer any form of significant harm. I am not satisfied, on the limited evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for one of the reasons set out in a s.5J(1)(a). Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
Conclusion
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).
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).
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.
Sean Baker
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:
(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.
(2)Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a)   the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b)   the person committed a serious non‑political crime before entering Australia; or
(c)   the person has been guilty of acts contrary to the purposes and principles of the United Nations.
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.
..
36Protection 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.
…