1608928 (Refugee)

[2017] AATA 1610

1608928 (Refugee) [2017] AATA 1610 (22 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1608928

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Linda Symons

DATE:22 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 22 August 2017 at 4:47pm

CATCHWORDS

Refugee – Protection visa – Tonga – No Convention grounds – Previous financial problems - Health issues and age – Better standard of health care in Australia – Adequate level of health care available in Tonga – Ministerial intervention

LEGISLATION
Migration Act 1948 – ss. 5, 5H, 5J, 5K-LA, 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] May 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Tonga, first arrived in Australia [in] June 1993 as holders of [temporary] visas. They departed Australia [in] September 1993. They returned to Australia [in] November 1996 as the holders of [temporary] visas that was valid until [date] February 1997. [In] February 1997, they were granted [temporary] visas that were valid until [date] November 1997. The first named applicant departed Australia [in] July 1997 and returned [in] July 1997.

3. [In] November 1997, the second named applicant applied for [permanent] visas and included the first named applicant as a dependent. They were issued associated Bridging visas on that date. [In] April 1999, the Department of Immigration and Border Protection (the Department) refused this visa application. [In] May 1999, the applicants lodged an application for an internal review which subsequently became an application for review to the Migration Review Tribunal (MRT) [in] June 1999.

4. [In] February 2001, the MRT remitted the application to the Department for reconsideration as to whether the primary visa applicant met the criteria for a [permanent] visa. [In] June 2004, the Department refused the visa application. On 2 July 2004, the applicants lodged an application for review at the MRT. On 6 June 2005, the MRT affirmed the Department’s decision. [In] July 2005, the applicants’ Bridging visas seized and they thereafter remained in Australia as unlawful non-citizens.

5. [In] November 2015, the applicants applied for Protection visas and were granted associated Bridging visas [in] November 2015. The delegate refused to grant the visas on the basis that he/she was not satisfied that the applicants are persons in respect of whom Australia has protection obligations. [In] June 2016, they applied to the Tribunal for review of that decision.

6. The applicants appeared before the Tribunal on 21 August 2017 to give evidence and present arguments. The Tribunal also heard evidence from their [family member] [name], their [relatives] [names].

7. The issues that arise on review are whether Australia has protection obligations to the applicants under the refugee criterion or under the complementary protection criterion. 

   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.

    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.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

14. The first name applicant’s claims in her application for a Protection visa are summarised as follows:

    ·She suffered inhuman treatment and mental harassment in Tonga. She sought help from the authorities but feels that it did not help her.

    ·She is [age] and has lived in Australia for about 20 years. She suffers from various illnesses and depression. If she returns to Tonga she will not get the protection and care she receives in Australia.

    ·She fears that if she returns to Tonga she is at risk of arbitrary deprivation of life and degrading treatment.

15. The second named applicant, who is the husband of the first named applicant, did not make any claims for protection before the Department. In a letter to the Department, the applicants’ migration agent stated that the application is to “get way to the Hon: Ministers attention.”

16. The applicants have provided to the Department and the Tribunal copies of their Tongan passports.

17. The applicants have provided to the Tribunal copies of the Department’s Decision Record dated [in] May 2016 and a letter from [a] Hospital dated 17 August 2017 in relation to the second named applicant.

18. During the hearing, the second named applicant indicated for the first time that he was making his own claims for protection as follows:

    ·He fears returning to Tonga because of his health problems.

    ·He fears that he will not receive the same level of medical services in Tonga that he receives in Australia.

    Nationality

19. The Tribunal finds that the applicants are citizens of Tonga, based on their Tongan passports which are before the Tribunal, and will assess the claims on this basis. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality.

20. The Tribunal finds that the second named applicant is the husband of the first named applicant and a member of the same family unit. 

    Does Australia have protection obligations to the applicants under the refugee criterion?  

21. In her visa application, the first named applicant claimed that she suffered inhuman treatment and mental harassment in Tonga. She claimed that she sought help from the authorities but feels that it did not help her. She claimed that if she returns to Tonga she will not get the protection and care she receives in Australia. She claimed that she suffers from various illnesses and depression. She claimed that she fears that if she returns to Tonga she is at risk of arbitrary deprivation of life and degrading treatment.

22. During the hearing, the first named applicant gave evidence that she did not suffer any persecution in Tonga. When asked whether she had any problems in Tonga, she answered no. When asked why she claimed in her visa application that she had problems in Tonga, she responded that the problems they had were because they were poor and had to stay at home. When asked what she thought would happen to her if she returns to Tonga, she responded that they have health problems. She stated that the hospitals in Tonga are not of a high standard. She stated that in Australia they can go straight to hospital if they are sick.

23. The Tribunal asked the first named applicant about her health. She stated that she is not healthy and is short of breath. When asked what medical conditions she has, she responded that she does not know but her doctor does. When asked whether she is on any medication, she stated that she is and also has to do some exercises every week. She requested that the Tribunal give them the opportunity to remain in Australia.

24. The applicants are represented by a migration agent. The Tribunal has not been provided with any medical evidence or any evidence from a psychologist in relation to the first named applicant.

25. The second named applicant informed the Tribunal during the hearing, for the first time, that he was also making claims for protection in his own right. He gave evidence that he did not suffer any persecution in Tonga. When asked whether he had any problems in Tonga, he stated that he had financial problems and it was therefore difficult. When asked what he thought would happen to him if he returns to Tonga, he responded that they would not be able to have what they have in Australia in relation to their health problems.

26. The Tribunal asked the second named applicant about his health. He stated that he suffers from [medical conditions]. When asked whether he is on any medication, he stated that he takes tablets for [the illness] and different medication for other things. He requested that the Tribunal allow him to remain in Australia because the medical standards here are good.

27. Shortly before the commencement of the hearing the Tribunal received a letter dated 17 August 2017 from the [Hospital] in relation to the second named applicant. It indicates that he has been known to the [the hospital’s] Rehabilitation Service since December 2016. It indicates that he has multiple medical issues and requires specialist medical and rehabilitation services.

28. The Tribunal has had regard to the evidence given by the witnesses. The applicants’ [family member], [and relatives] gave evidence about their love and support of the applicants and their concerns for them if they return to Tonga because of their age, medical conditions and the length of time they have lived in Australia.

29. The Tribunal has had regard to the Department's Policy Guidelines to the extent that they are relevant to the decision under consideration. The Tribunal has also had regard to country information on Tonga.

    Findings

30. The Tribunal accepts that the first named applicant was born in Tonga on [date] and the second named applicant was born in Tonga on [date]. The Tribunal accepts that they were married [in] April 1960.The Tribunal accepts that their [children] reside in Australia. The Tribunal accepts that the first and second named applicants each have [siblings] who live in Australia. The Tribunal accepts that the first named applicant has [relatives] who live in Tonga and the second named applicant has [relatives] who live in Tonga. The Tribunal accepts that one of his [relatives], is currently in Australia visiting him and she gave evidence at the hearing.

31. The Tribunal does not accept that the first named applicant suffered inhuman treatment and mental harassment in Tonga. The Tribunal does not accept that she sought help from the authorities but feels that it did not help her. The Tribunal does not accept that she fears that if she returns to Tonga she is at risk of arbitrary deprivation of life and degrading treatment. The Tribunal accepts that neither of the applicants suffered persecution in Tonga. The Tribunal accepts that they had financial problems in Tonga.

32. The Tribunal accepts that the applicants have lived in Australia since [date] November 1996; lawfully for part of that time and unlawfully from [date] July 2005 to [date] November 2015. The Tribunal accepts that they both have medical conditions for which they receive medical treatment and rehabilitation in Australia. The Tribunal accepts that they are both on medication. The Tribunal accepts that if they are concerned that if they return to Tonga they will not be able to receive the same standard of medical treatment and care. The Tribunal accepts that they prefer to live in Australia with their children and do not wish to return to Tonga.

33. The country information indicates the following in relation to medical services in Tonga:

    Tonga is characterised by generally high levels of access to health care and high             quality of life, with health indicators improving over the last 50 years. Most (99%) of             Tonga’s population have access to improved water and sanitation and 100% have   access to appropriate health care services with a regular supply of essential drugs.                   Health outcomes are among the best in the East Asia and Pacific regions and there                  is little absolute poverty. Infant, under five, and maternal mortality rates have   declined, while infectious diseases have been largely brought under control. …

    Health care services are decentralised and Government health services are provided                  free of charge. Physical access to care is good for the majority of the population, with               the exception of small populations living on isolated islands. The 2003 Tonga   Household Survey showed that 89% of all health services were delivered by public               hospitals and only 6% by health centres. The private sector is small and consists of                  traditional healers, after hours practising government-employed doctors, three   officially recognised private pharmacies and a small number of for-profit and not-for-                   profit non-governmental organisations (15 in 2005/2006)….

    Tonga has no pharmaceutical manufacturers or wholesalers; relying predominately   on supplies from New Zealand and Australia. International donor organizations   contributing towards pharmaceuticals include the International Planned Parenthood                 Federation, UNICEF, Secretariat of the Pacific Community, WHO and Japan   International Cooperation Agency. Tonga is part of the EC/ACP/WHO partnership              on pharmaceutical sector capacity building, which aims to enhance the accessibility,                affordability and rational use of essential medicines in 14 Pacific Island Countries and                  Territories.   

    The pharmaceutical sector in Tonga is not extensively regulated and there are no             legal restrictions on pharmaceutical sales to licensed outlets. However, Tonga has a                    well-functioning central procurement and distribution scheme. The Central Pharmacy   and Medical Supplies Unit, managed by the Ministry of Health, procures and   distributes medicines and therapeutic goods to the hospitals, health centres,   reproductive health clinics and a limited number of village health workers. Public   pharmaceutical expenditure, with the exception of a small amount of international aid,                  is funded entirely by the Ministry of Health.[1]

    [1] Health Service Delivery Profile, Kingdom of Tonga, Developed in collaboration with WHO and the Ministry of Health, Tonga, 2012.

34. This country information indicates that the applicants would be able to access medical services and medication free of charge in Tonga. The Tribunal accepts that these medical services may not be as sophisticated or extensive as those in Australia. On the evidence before it, the Tribunal is not satisfied that the applicants would be denied access to medical treatment or to medication in Tonga for any of the reasons set out in s.5J(1)(a) of the Act if they return to Tonga now or in the reasonably foreseeable future.

35. Having considered the first named applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Tonga now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act. 

36. Having considered the second named applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Tonga now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act. 

    Does Australia have protection obligations to the applicants under the complementary      protection criterion?

37. The Tribunal has considered the applicants’ claims under complementary protection.

38. The evidence before the Tribunal is that the second named applicant has not undertaken any paid employment in Australia. The applicants’ [family member] gave evidence that she and her husband have been supporting them financially and otherwise including paying for their medication. She gave evidence that there is no reason why she would not continue to do so. The applicants’ [relatives] who live in Australia, [each] gave evidence that they assist them financially and are prepared to continue to do so. The applicants’ [relative] who lives in Tonga, [gave] evidence that she has maintained contact with them. She travelled to Australia to visit them and gave evidence at the hearing.

39. The applicants have family members in Tonga including [relatives]. The Tribunal is of the view that the financial assistance they receive from Australia will enable them to pay for their basic needs and care in Tonga. The country information referred to above indicates that they will be able to access medical services and medication free of charge.

1. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for the reasons claimed if she returns to Tonga now or in the reasonably foreseeable future.

2. Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that she will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Tonga now or in the reasonably foreseeable future.

3. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Tonga, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the first named applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

4. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the second named applicant will suffer significant harm for the reasons claimed if he returns to Tonga now or in the reasonably foreseeable future.

5. Having considered all of the second named applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Tonga now or in the reasonably foreseeable future.

6. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the second named applicant does not satisfy the criterion in s.36(2)(aa) of the Act. 

7. In a letter to the Department, the applicants’ migration agent stated that the application is to “get way to the Hon: Ministers attention.” No request was made to the Tribunal to refer this application to the Minister for Immigration and Border Protection (the Minister) to consider Ministerial intervention nor were any submissions made to the Tribunal in this regard. It is a matter for the applicants to make such a request to the Minister if they so desire.

   CONCLUSION

8. The Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.

9. There is no suggestion that the applicants satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2) of the Act.

   DECISION

10. The Tribunal affirms the decision not to grant the applicants Protection visas.

Linda Symons
         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.

…