1605011 (Refugee)

[2017] AATA 833

1605011 (Refugee) [2017] AATA 833 (4 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605011

COUNTRY OF REFERENCE:                  Kenya

MEMBER:Carolyn Wilson

DATE:4 May 2017

PLACE OF DECISION:  Adelaide

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

Statement made on 04 May 2017 at 9:21am

CATCHWORDS
Refugee – Protection visa – Kenya – Religion – Christian – Particular social group – Female student – Lesbian – al-Shabaab – Refugee camps – State protection – Delay in applying for protection

LEGISLATION
Migration Act 1958, ss 5(1), 5J, 36, 65, 499
Migration Regulations 1994 Schedule 2

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 [in] March 2016 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 Kenya applied for the visa [in] April 2015. The delegate refused to grant the visa on the basis that the claims were speculative and not supported by country information.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

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

10. The applicant is [an age] year old single woman of Kikuyu ethnicity from Nairobi, Kenya.  She arrived in Australia in July 2012 as the holder of a [Student] visa.  She has returned to Kenya once, in late 2014, for one month.

11. The applicant claimed in her protection visa application to fear returning to Kenya because she is Christian and a student.  She fears harm from al Shabaab because they have targeted Christian students in Kenya.  She also stated that she had relatives living in a refugee camp since post-election violence in Kenya in 2007 and 2008.

12. The delegate refused the application as they did not accept the applicant had a subjective fear of al-Shabaab, taking into account her delay in seeking protection and her willingness to return to Kenya in 2014.  The delegate also relied on country information indicating the Kenyan government had taken steps to address the threat posed by al-Shabaab.

13. On review the applicant provided a statutory declaration dated 12 April 2016, responding to the delegate’s decision and making the following claims:

    ‘I returned to Kenya before the massacre of students in Kenya by Al-Shabaab which occurred after I had returned to Australia from my visit to Kenya to celebrate Christmas with my family and the tenth anniversary since the death of my father.  It was not until after I returned to Australia that the murder of Christian students occurred in Kenya.  In 2015/2016 Amnesty International reported:

    ‘On 2 April 2015 gunmen attacked Garissa University College in northeastern Kenya, near the Somali border. The attackers killed 147 students and injured 79 before detonating suicide vests when cornered by security forces.  Al-Shabaab claimed responsibility for this attack.

    ‘This was after my visit to Kenya because I returned to Australia [in] January 2015.  I am a student and wish to go to University.  If I return to Kenya I fear that I shall be killed by Al Shabaab not only because I am a female student but also because I am a practising Christian.’

14. At the hearing the applicant initially maintained her fear of returning to Kenya was based on fear of harm from al-Shabaab.  The Tribunal discussed country information with the applicant, pointing out that as a resident of Nairobi she would be away from the border counties of Garissa and Manderra where the 2015 attack on students occurred and where al-Shabaab are more active.  The Tribunal put to the applicant she had returned to Kenya after the attack in Nairobi in 2013, which might suggest she did not have a subjective fear of harm in Nairobi.  The applicant denied this, and said her fear of al-Shabaab began after the attack in Nairobi, which she claimed at hearing occurred after her visit to Kenya in 2014.  The Tribunal pointed out the attack in the Westgate Mall, Nairobi, occurred in 2013. The applicant and her representative said they would put in a post hearing submission on the actual date of the Nairobi attack on the Westgate Mall, demonstrating to the Tribunal that this attack occurred after the applicant’s visit home.  No such submission has been made, and the Tribunal notes it could not be, as the attack in Nairobi in fact occurred in 2013.

15. When asked by the Tribunal if there was any other reason she did not want to return to Kenya, the applicant raised a new claim.  She said she is lesbian and her family have rejected her for this reason.  They may harm her if she returns, or if not her family, the authorities may jail her or harm her in other ways.  She claimed to have had a girlfriend when she was [a teenager], but when her mother found out, she said she would disown her, so she ended that relationship.  When asked by the Tribunal if she had engaged with the lesbian community in [Australia] she said no, but she had had one relationship with a woman she met through friends at a pub.  That relationship lasted 6 months in 2015. It ended because her partner was annoyed at her for not wanting to be public about their relationship.  She cannot provide evidence from this ex-partner because she moved to [another city] and the applicant has no way to contact her. 

16. Given the new claims, the Tribunal offered the applicant a break in the hearing to discuss the issue with her representative and to indicate whether she had more evidence to give at the hearing or wanted to provide more information in post hearing submissions.  After the break the applicant said she had nothing more to say to the Tribunal but wanted more time to put in evidence and written submissions post hearing.  Time was granted for this, and material has been provided by the applicant.

    Fear of harm from al-Shabaab

17. Al-Shabaab is an Islamic organisation which was formed in 2006.  The Council on Foreign Relations offers the following overview:

    Al-Shabaab… is an Islamic organization that controls much of southern Somalia, excluding the capital, Mogadishu. It has waged an insurgency against Somalia’s transitional government and its Ethiopian supporters since 2006… [A]l-Shabaab leaders have claimed affiliation with al-Qaeda since 2007.[1]

    [1] Hanson, S, 2011 ‘Al-Shabaab’, Council on Foreign Relations, 10 August <

18. In October 2011, following al Shabaab’s repeated incursions into northern Kenya, the Kenyan Government sent troops into Somalia to create a 100 kilometre buffer zone at the border separating the two countries. Al Shabaab responded to the incursion with threats against Kenya. A statement released by al Shabaab said:

    The Kenyan public must understand that the impetuous decision by their troops to cross the border into Somalia will not be without severe repercussions. The bloody battles that will ensue as a result of this incursion will most likely disrupt the social equilibrium and imperil the lives of hundreds of thousands of civilians.[2]

    [2] ‘Kenya: Al-Shabaab Threatens Revenge Attacks’, 2012, All Africa, 17 October <>

    In September 2013, al-Shabaab militants stormed Nairobi's premiere shopping centre, the Westgate Mall, throwing grenades and firing indiscriminately at shoppers. The subsequent siege lasted 80 hours and resulted in at least 67 deaths.[3] 

    [3] “Terror in Nairobi: the full story behind al-Shabaab's mall attack", Guardian, The, 04 October 2013,

19. The US Department of State reported the following attacks by al-Shabaab in 2014 to 2016:

    [2014] The Somalia-based terrorist group al-Shabaab carried out attacks in the counties of Mombasa, Mandera, Garissa, Wajir, Lamu, and Tana River and said it had targeted non-Muslims because of their faith. In Lamu County, al-Shabaab claimed responsibility for at least 65 deaths, with some witnesses reporting the terrorists asked the religion of victims, killing non-Muslims. In Mandera County, al-Shabaab claimed responsibility for the killings of 28 people in a November attack, with media reporting witness statements that the terrorists had executed those who were unable to recite Quranic verses. Al-Shabaab also directed violence against members of other faiths.[4]

    [2015] The Somalia-based terrorist group al-Shabaab carried out attacks in Garissa and Mandera counties and said it had targeted non-Muslims because of their faith. On April 2, al-Shabaab claimed responsibility for an attack on a university in Garissa that resulted in at least 147 deaths, with witnesses reporting the terrorists targeted non-Muslims. In Mandera County, al-Shabaab claimed responsibility for the killings of 14 people in a July attack on a guesthouse, stating it had targeted Christian quarry workers. Al-Shabaab terrorists made several incursions between May and November into northeastern and coastal towns in which they forcefully herded residents into mosques to preach to and threaten them with violence if they cooperated with the government.[5]

    [2016] Al-Shabaab terrorists conducted deadly attacks and guerilla-style raids on isolated communities along the border with Somalia. There were numerous cases of terrorist abuses, including the killing of at least six persons in Mandera County on July 1 by suspected al-Shabaab terrorists who attacked two commercial buses and the killing of 12 persons in Mandera County by al-Shabaab terrorists in an attack on a hostel.[6]

    [4] US Department of State International Religious Freedom Report for 2014 Kenya 

    [5] US Department of State International Religious Freedom Report for 2015 Kenya  US Department of State Country Reports on Human Rights Practices for 2016 Kenya >

    The applicant claims to fear being targeted by al-Shabaab for reason of her religion and her status as a student.  The Tribunal notes Christians in Kenya amount to 82% of the population, in a country with a total population of around 46 million.[7] 

    [7] US Department of State International Religious Freedom Report for 2015 Kenya 

20. The applicant is not currently studying in Australia, nor has she enrolled in any institution in Kenya, but merely expressed an interest in further study.  She is relying on the attack on the university in Garissa in 2015 as evidence of the risk to Christian students in Kenya.

21. The applicant’s home area is [Town 1] in Nairobi.  Her mother and [number] siblings remain in Nairobi, and have not faced any harm or threats from al-Shabaab. The Tribunal acknowledges the attack in Nairobi in 2013, but notes this did not deter the applicant from returning to Kenya for a month in late 2014, and notes there have been no major attacks by al-Shabaab in Nairobi since that time.  The Tribunal acknowledges the attack on the university in Garissa, but considers it mere speculation to say that all Christian students in Kenya face a real chance of attack by al-Shabaab. Given the activity of al-Shabaab is primarily in north-eastern Kenya, in areas bordering Somalia, the Tribunal considers the claim that the applicant as a citizen of Nairobi could be targeted by al-Shabaab because of her religion and/or status as a student is mere speculation. The Tribunal finds the chance of the applicant being targeted by al-Shabaab in Nairobi is too remote to amount to a real chance. 

    Sexual orientation claim

22. The applicant raised the claim to be lesbian for the first time at the hearing.  She provided limited detail, and was given further time to provide more information to support the claim.  In the post hearing submissions, no evidence of the applicant’s claimed sexual orientation has been provided.  There are no details of claimed relationships, no details of her engagement with any lesbian communities, and no evidence from witnesses, such as past partners or friends/family who are aware of her sexual orientation.  There is no information in the submissions on how she discovered her sexuality, how she has expressed it, and no detail on how her family have reacted to her sexual orientation.  In the post hearing submissions the applicant has merely stated the threats she may face in Kenya as a lesbian and attached country information to support the claim that lesbians are persecuted in Kenya.

23. The Tribunal does not accept the applicant’s claim that she is lesbian or that she fears returning to Kenya for this reason.  The Tribunal put the applicant on notice at the hearing that it might see this claim as a recent fabrication, given she raised it so late. The applicant has been assisted by a migration agent throughout the process of applying for a protection visa.  She has been interviewed by a delegate of the Department. She would have been advised by her agent, and warned by the delegate, that she needed to put forward all her claims.  She was on notice since the delegate refused her application that her claim to fear harm from al-Shabaab was considered speculative.  She was invited, in the Tribunal’s hearing invitation, to ensure a written submission setting out all her claims was provided 7 days prior to the hearing. Yet nothing was said about her claim to be lesbian until the hearing, after the Tribunal put to her that country information did not appear to support her claim to have an objective fear of harm from al-Shabaab. In the event the applicant was nervous about raising the claim earlier, for reason of privacy or any other reason, she was given more time to put her best case forward with time granted for post hearing submissions and evidence.   However, post hearing the applicant has provided only generic information on the treatment of lesbians in Kenya, and has not provided any personal details or supporting evidence to demonstrate she is lesbian.

24. The applicant’s claim to be lesbian, and to have been rejected by her mother for this reason, is inconsistent with her migration history.  She was supported by her mother and family to study in Australia.  She returned voluntarily for a month to visit her family to spend Christmas with them and mark the tenth anniversary of her father’s death.  This is inconsistent with a claim to have been rejected by her family due to a relationship with a girl when she was [a teenager].

25. Given the lack of detail in her claims, the absence of any supporting evidence, the inconsistency of the claim, and the late stage at which it was raised, the Tribunal finds the applicant does not identify as lesbian.  The Tribunal finds the applicant does not face a real chance of persecution in Kenya for reason of her membership of a particular social group of lesbians in Kenya, because it does not accept she a member of this group.

    Conclusion on refugee claims

26. In addition to making specific claims, the applicant has also referred to relatives living in a refugee camp following post-election violence in Kenya in 2007/2008.  No claim has been explicitly made that the applicant fears harm for reason of her relatives misfortune.  The applicant’s family continue to live in Nairobi, her mother works is a leader in the local church, and the family had sufficient funds to support the costs of the applicant studying in Australia.  The applicant has referred to generalised violence in 2007/2008, but has not particularised any harm she suffered during this period.  Given she only applied for a protection visa in 2015, three years after arriving in Australia, and willingly returned to Kenya in 2014, it appears she did not fear persecution arising from any ongoing issues stemming from general violence in 2007/2008. Whilst the Tribunal has taken into account the information regarding her relatives, there is no basis for finding the applicant has a well-founded fear of persecution because her relatives live in a refugee camp.  

27. The Tribunal has found the applicant’s claim to fear persecution by al-Shabaab to be speculative and too remote to amount to a real chance. The Tribunal does not accept the applicant is lesbian, and therefore does not accept she would face persecution for this reason. It follows the Tribunal does not accept the applicant has a well-founded fear of persecution for reason of her religion or membership of a particular social group or any other reason in s.5J, should she return to Kenya in the reasonably foreseeable future. The applicant does not meet s.36(2)(a).

    Complementary protection

1. The Tribunal has considered whether the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of her being removed from Australia to Kenya

2. The Tribunal relies on country information  to find al-Shabaab are primarily active in the counties on the border with Somalia, such as Garissa and Mandera, and finds there are not substantial grounds to believe the applicant faces a real risk of getting caught up in violence by al-Shabaab, as a resident of Nairobi.   

3. For the reasons given above, the Tribunal does not accept the applicant is lesbian and therefore finds there are not substantial grounds for believing she faces a real risk of significant harm for sexual orientation as lesbian.

4. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya there is a real risk she will suffer significant harm. The Tribunal finds the applicant does not meet the criterion for complementary protection set out in s.36(2)(aa).

   Conclusion

5. 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).

6. 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).

7. 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

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

   Carolyn Wilson
   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.

   …