1600604 (Refugee)

[2018] AATA 884

1600604 (Refugee) [2018] AATA 884 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1600604

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mara Moustafine

DATE:22 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 March 2018 at 4:12pm

CATCHWORDS
Refugee – Protection Visa – Fiji – Fear of violence – Persecution by state authorities – Legal disputes – Imputed political opinion – Family links to coup figures – Previous adverse interactions with state authorities - Witness credibility – Inconsistent and implausible evidence – Claims speculative and unsubstantiated

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA(1994) 52 FCR 437
MlEA v Guo & Anor (1997) 191 CLR 559
Prasad v MlEA (1985) 6 FCR 155
Yao-Jing Li v M1MA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Fiji and is [age]. He last arrived in Australia [in] April 2015 as the holder of a [temporary] visa, which was valid until [July] 2015.  He visited Australia on fourteen previous occasions since 1992, including four times in 2014.  

3. The applicant applied for a Protection visa [in] May 2015 and the Department refused to grant the visa [in] January 2016.

4. On 19 January 2016 the applicant applied to the Tribunal for a review of that decision, a copy of which he provided to the Tribunal for the purposes of the review and is taken to be on notice of its findings and reasons.

5. The applicant appeared before the Tribunal on 4 January 2018 to give evidence and present arguments.

6. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

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

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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.

    Credibility

    Mandatory considerations

13. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CLAIMS AND EVIDENCE

    Application to the Department

14. According to his protection visa application form, the applicant is an ethnic Fijian, born in [a town in] Fiji, where he completed 11 years of schooling. He was married in 2004 and divorced in December 2014. He listed his occupation as [Occupation 1] and stated that he worked in various sectors in [Fiji]. His [children], ex-wife and [brothers] live in Fiji; a brother and [sister] are resident in [another country] and a sister in Australia.

15. The applicant’s claims, as set out in his Protection visa application and statutory declaration, are that he fears that, if he returns to Fiji, he will be harmed by the police and the military, as he was in the past. His problem with the police stems from his complaints about their treatment of his ex-wife, who was frequently detained on alleged fraud charges relating to her [business]. As a result of this, he was beaten by police on multiple occasions, especially in 2013 and 2014, but never had any charges against him.

16. The applicant stated that he and his wife divorced so that he ‘would not so easily be linked to her’ when trying to come out of Fiji for his work as [Occupation 1]; and that if immigration knew he was connected to her, he ‘wouldn’t have been able to leave the country’, although ‘the local police do know it’. However, he was still her partner and had to support her. He claimed that, if he returned to Fiji, he would still try to defend his ex-wife as she was the mother of his children.

17. The applicant also had a ‘past problem’ with the military because of a family association with [Mr A], [a family member] of [a senior coup figure, Mr B], whose company the applicant worked for between 2000 and 2004. He stated that, after the coup, people said they saw [Mr A] at the applicant’s place and that on several occasions in [2007], [a number of] months after the 2006 coup, he was picked up by soldiers and taken to the military camp, where he was severely beaten. One time, they [details deleted].  He always kept moving while he was in Fiji and never stayed long in the places where they rented to keep away from the military.

    Application for review

18. On 29 December 2017 the applicant’s adviser provided a new statutory declaration from the applicant, dated [in] December 2017, and a submission in support of his claims. In the statutory declaration the applicant stated that:

    ·     He was ‘no longer together’ with his wife and had stopped talking with her over a year ago when he realised that she really had ‘committed those offences’. Previously he had ‘genuinely believed that she was not committing those offences’ and ‘thought that the things against her were just made up. That’s why [he] had been supporting her in Fiji, with the police’. As a result, he had made himself ‘a nuisance at the police stations’ while trying to protect her from what he thought were ‘false charges’.

    ·     His relationship with his wife had ‘deteriorated a lot’ as she had cursed his dead mother, tried to fool him about how she was using the money he sent for rent and food for the kids. He fears that if he returns to Fiji, she will ‘go to the police and tell them things about [him] that are not true’.

    ·     He believes the police or military will target him if he returns to Fiji as [Mr C, a senior government official] was the officer in charge of [Army Base 1] when he was abused and later sexually assaulted in 2000. He had not mentioned the sexual assault in his Protection visa application because he did not want to remember it. He fears that [Mr C] will cause him problems because he knows what happened to him at the military camp and will dislike his behaviour at police stations and the criminal backgrounds of his ex-wife and his brother.

19. In her submission, the adviser posited that the applicant feared harm ‘due to being disliked by the police and military, partly due to his own actions in trying to protect his ex-wife in the past, and partly due to implications made about him by the police and military due to his connections with his ex-wife and his brother, and his imputed political opinion due to his past association with [Mr A and Mr B]’.  Supporting country information about police brutality in Fiji and an opinion from a counsellor, with whom the applicant had commenced counselling in October 2017 for an anxiety disorder, were also provided.

20. At the beginning of the hearing the applicant confirmed that he was fit to give evidence and that the claims in his application and submission still stood. He discussed his background, family, his claims for protection and matters relating to his current circumstances.

21. The applicant told the Tribunal that he married his wife 25 years ago in December 1993. Although they divorced in November 2014 and he would not live with her if he returned to Fiji, he would always support her financially, as she was the mother of his children and could not survive alone. He still had contact with her and had spoken to her the previous day. 

22. Although people had been telling him for a long time that his ex-wife was committing fraud, he had been blinded by love and did not believe them. He always tried to support his wife and had intervened with police to stop them treating her roughly and dragging her off in the early morning in front of the children. He claimed that he made a nuisance of himself with police over her cases in 2013 and 2014 and was beaten by the police as a result. He finally realised that his wife was guilty of fraud when he was in Australia, although he never saw the money.

23. The applicant claimed that because of his relationship with [Mr A], his former employer and [family member] of [Mr B], he was twice taken to the military camp in 2000, detained overnight, questioned about his knowledge about the coup and beaten. On the second occasion, in [2000], he was [stripped] naked, tortured and sexually assaulted. He did not discuss what happened with anyone but made a failed attempt at suicide three days later. He was not harmed by the military at any other time.

24. The applicant said he was afraid to return to Fiji now because [Mr C], the officer in charge of [Army Camp 1] in 2000, was now [a senior government official] and there was ongoing police brutality in the country. He fears he will be targeted by [Mr C], who will remember him from 2000 and because of his interventions with the police over his ex-wife’s case, most recently in 2014 or 2015. He claimed that, if he returns to Fiji, he will still support his ex-wife in her ongoing fraud cases and will face the same beatings as before, when the police see him at the police station again. The applicant confirmed that he did not fear harm in Fiji for any other reason.

25. The applicant confirmed that he never had a direct encounter with [Mr C] and was not sure what position he held [at Army Base 1] in 2000. He said he saw [Mr C] at the camp giving orders before he was taken into a room for questioning by two others, although he also stated that his head was covered both at the time he was brought to the camp and while he was being questioned. Asked how the interrogators could hear his responses, the applicant said he was screaming. He did not see [Mr C] on the second occasion when he was [sexually] assaulted by three other men.

26. Asked what prompted him to speak openly about his sexual assault after all this time, the applicant said he had shut out the memories for a long time by keeping himself busy, but the memories started coming back and he sought counselling because he wanted to stop his anxiety. It was not easy for him to talk about these things and he could not do so in Fiji. He felt safe talking about them in Australia.

27. The applicant confirmed that he never encountered problems leaving or entering Fiji and that he had travelled to Australia on multiple occasions, including four times in 2014.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. On the basis of the applicant’s passport, a copy of which was on the Department file, and, in the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is a national of Fiji. Accordingly, the Tribunal finds that Fiji is the country of reference with respect to the refugee criteria and the receiving country in respect of the complementary protection criterion.

29. For reasons outlined below, the Tribunal did not find the applicant to be a truthful and credible witness about the reasons he fears harm in Fiji. The Tribunal found the applicant’s evidence regarding key aspects of his claims inconsistent and implausible. For this and other reasons detailed below, the Tribunal is not satisfied that the applicant faces a real risk of serious or significant harm if he now returns to Fiji. In the Tribunal’s view, the applicant’s claims for protection have been contrived to achieve a migration outcome.

30. The applicant’s key claim is that he fears harm by the police in Fiji because the officer in charge of [Army Base 1] when he was abused there in 2000 is now [a senior government official] and he will be targeted because of his association with [Mr A and Mr B], for his interventions with the police in support of his wife and because of the criminal backgrounds of his ex-wife and his brother.

31. Based on country information from DFAT, Amnesty International and other independent sources cited in the adviser’s submission, the Tribunal recognises that beatings, assaults and torture of political activists have taken place at the hands of security officials, including police and military personnel, in Fiji, including over recent years[1].  

    [1] DFAT, DFAT Country Information Report Fiji, 27 September 2017; Amnesty International, Beating Justice: How Fiji’s security forces get away with torture, 2016.

32. The Tribunal accepts that, as a former employee and acquaintance of [Mr A], the applicant may well have attracted the attention of the military in 2000 on suspicion of his involvement in or knowledge of the attempted [coup] in May 2000. The Tribunal is prepared to disregard the inconsistency in the applicant’s evidence as to the year in which these events took place: [2007], as in his first statutory declaration, or 2000, as in his most recent statutory declaration and at hearing. Notwithstanding his late introduction of the claim, the Tribunal is prepared to accept that the applicant may have been sexually assaulted, as well as been physically abused, at the hands of military personnel in the course of the investigation. The Tribunal notes that the applicant was not arrested or charged and, on both occasions, was released after being detained for one night. By his own evidence, he had no other encounters or problems with the military since 2000.

33. The Tribunal finds opportunistic the applicant’s introduction of his unsubstantiated claim that the officer in charge of [Army Base 1] where he was detained in 2000 was [Mr C], who in 2016 was appointed [a senior government position]. Even if the Tribunal were to accept that [Mr C] was in charge of [Army Base 1] in 2000, as claimed, the Tribunal is not persuaded that his move to the role of [a senior government position] would make the applicant’s situation any more vulnerable than before. As discussed with the applicant, had [Mr C] wished to target him, he could have done so at any time while he was in the Fiji military. This did not happen.

34. Moreover, the Tribunal is not satisfied that [Mr C] and the applicant ever crossed paths. By his own evidence, the applicant never encountered [Mr C] directly and was unable to identify his role at [Army Base 1] in 2000. The applicant’s claim to have seen [Mr C] giving orders before he was taken into the interrogation room by two others is undermined by his evidence that his head was covered both at the time he was brought to the camp and while being questioned. The applicant also confirmed that he did not see [Mr C] on the second occasion when he was allegedly [sexually] assaulted.

35. In light of the above, the Tribunal is not satisfied that, if he now returns to Fiji, the applicant will be targeted and harmed by [Mr C], the military or the police due to his past association with the [Mr A and Mr B].

36. Nor is the Tribunal satisfied that, if he now returns to Fiji, the applicant will be targeted by Fiji security authorities, and the police in particular, over his past interventions in support of his wife; nor that he will make a nuisance of himself with police in her support.

37. The Tribunal accepts that, while he was still living with his ex-wife, the applicant may have been beaten by police as a result of his complaints about the circumstances surrounding her detention. However, he clearly states in his recent statutory declaration that the reason he supported his wife with the police was that he ‘genuinely believed’ that she was had not committed the fraud offences. Since arriving in Australia, however, the applicant has accepted that she had, in fact, committed those offences. As discussed with the applicant, the Tribunal does not, therefore, find plausible his claim at hearing that he will again make a nuisance of himself at police stations in her defence if he returns to Fiji. The Tribunal has noted the applicant’s response that, although he would not go back to live with his ex-wife, he will support her with the court cases and financially because she is the mother of his children. The Tribunal accepts that he may well continue to support his children but is not persuaded that he will intervene with police on his ex-wife’s behalf, particularly in view of the deterioration of their relationship, as described in his most recent statutory declaration.

38. The Tribunal notes that, over the years, the applicant has taken care to ensure his own safety and well-being – divorcing his wife so that he ‘would not so easily be linked to her’ when trying to come out of Fiji for work, moving frequently to keep away from the Fiji military and, as noted in his ex-wife’s lawyer’s letter [in] November 2015 cited in the Department decision and discussed with the applicant, hiding from people for fear of abuse, threats and discrimination, causing his loss of employment. Significantly, the applicant has never had any charges against him, nor any difficulties leaving or entering Fiji over many years of frequent travel; even though he claims the local police were aware of the link between him and his wife. In view of the above, the Tribunal considers that any interactions the applicant may have had with the police on his wife’s behalf in the past were within bounds acceptable to them.

1. Finally, the Tribunal considers the new claim introduced by the applicant in his recent statutory declaration, that the police may target him because of the criminal background of his brother, as well as his wife, unsubstantiated and speculative.

2. In light of the multiple concerns outlined above, the Tribunal is not satisfied that the applicant has been truthful about his experiences in Fiji and the reasons he fears harm there. The Tribunal is not satisfied that the applicant will be harmed or targeted by the Fiji security authorities, including the military, the police or [Mr C], because of his past association with [Mr A and Mr B] or problems that resulted from this at the military camp in 2000; his interventions with police over his ex-wife’s fraud cases in the past; the criminal backgrounds of his ex-wife and his brother; or for any other reason.  Nor is the Tribunal satisfied that, if he returns to Fiji, the applicant will intervene or make a nuisance of himself with police in support of his ex-wife’s ongoing fraud cases in any way that might be damaging to him.

3. For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

   CONCLUSIONS

4. 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).

5. 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).

6. 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

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

   Mara Moustafine
   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.

   ..

   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.

   …