1611431 (Refugee)

[2019] AATA 6420

1611431 (Refugee) [2019] AATA 6420 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1611431

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Denis Dragovic   

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2019 at 2:16pm

CATCHWORDS

REFUGEE – protection visa – Lebanon – kidnapped and tortured by militia 40 years ago – long residence in another country – no access to protection there – multiple visits to Lebanon with no harm – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), 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 and Border Protection on 30 June 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 Lebanon, applied for the visas on 30 June 2015. The Tribunal viewed copies of the applicants’ Lebanese passports and accept that the applicants are citizens of Lebanon.

3. According to the delegate’s decision which was provided to the Tribunal by the applicants, at interview the first named applicant (“the applicant”) explained that his father was born in [Country 1]. Under certain circumstances this may infer that the applicant also has [Country 1] citizenship. A submission by the applicant’s migration agent (DF f.141) provides information penned by a [Country 1] lawyer that indicates that under [Country 1] law the applicant would not be able to access [Country 1] citizenship. I accept this evidence as fact. As such I find that the applicant does not have access to third country protection under s.36 (3).

4. Non-exhaustive summary of claims: The applicants are husband and wife [aged] years respectively. The first named applicant claims that he was kidnapped and tortured by Shia militias during the Lebanese Civil War in 1976. He claims that he was threatened never to return. He fears that was he to return he would face harm. He fears Hezbollah because of his family’s association with the Lebanese government.

5. The delegate accepted the applicant’s claims of fearing Hezbollah and that he was captured by them 40 years ago but the delegate nevertheless refused to grant the visas on the basis that he found that the chances of the applicant being detained for those reasons were less than remote and that he would not be harmed by Hezbollah.

6. The applicant is an elderly man [number] years of age. A medical certificate was provided post hearing notifying the tribunal that he has ‘moderate cognitive impairment (moderate dementia)’. In addition the document states that he has been suffering from a lack of concentration and depression.  I am satisfied that at the hearing the applicant provided evidence to the best of his recollection. The subsequent decision does not turn on conflicting evidence provided at an earlier stage which could have been tainted by a failing memory nor does it turn on credibility in general. As such I am satisfied that the applicant had the opportunity for a meaningful hearing to present evidence and make arguments. Nevertheless, I note that due to the applicant’s age I had regard to the Tribunal’s Vulnerability Guidelines including emphasising to the applicant that he could request breaks when he felt that he required them.

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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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

    Evidence and Findings of Fact

14. The applicant was born in Lebanon but lived in [Country 1] since he was [an age] year old child. He has a [Country 1] accent and speaks Arabic with a [Country 1] dialect. I accept this as fact.

15. The applicant spent five years of his life in Lebanon (1971-1976) moving there because his [sibling]’s [spouse] died and [s/he] had [a number of] children and so he wanted to help [her/him] bring up the children. The applicant met his wife, the second named applicant in Lebanon. I accept this as fact.

16. The Lebanese Civil War began in 1975. He stated at the Tribunal hearing that after the war broke out the country was divided into two sections, one for the Christians and one for the Muslims. He lived in the Christian area but worked in the Muslim area requiring him to regularly travel between the two areas. I accept this as fact.

17. The applicant described one day in September 1976 when he was stopped by an armed person at a check point and asked for his ID which states that he is Christian and living in an area that was a stronghold of the Christians. The person manning the checkpoint noticed his [Country 1] accent and asked questions about why he was there. The guard was suspicious that someone with a [Country 1] accent would be living in a Christian area. The applicant fears that they thought he was a spy. As a result the applicant claims that he was put into prison and beaten by Shia militia. He claims that he was tortured for [number] days and then released. He claims that he was told that they didn’t want to see him in that country at all and if they saw him again that he would be in trouble and/or killed. He was told that they wanted to kill all Christians. The applicant believes that the people who did this to him were the precursor to the Hezbollah movement which was formally established six years later in 1982. I accept that the applicant was taken and tortured as described above. I accept the applicant’s belief that the people who did it to him were associated with the Shia militias which subsequently became Hezbollah.

18. [Number] days later, after his health recovered, he claims that he took his wife and children back to [Country 1] to live in [City]. I accept this as fact.

19. The applicants have [a number] of their own children. Of the applicant’s [sibling]’s children whom he helped raise, [a number] are living in [Country 2] and [a number] are married and live in Beirut. In addition the applicant has another [sibling] who lives in Beirut. I accept this as fact.

20. The applicant claims that his journey to Australia took him from [Country 1] through Lebanon crossing the border without the need for travel documents and then flying out of [Airport] [in] May 2015 on his way to Australia. He added that he went to [Government department location] in Beirut to apply for a passport before travelling. In total he claimed that he was in Lebanon for four days. He said that he entered Lebanon on the Monday [date] May and left on the [date] May. I accept this as fact.

21. The applicant said that he was in Lebanon during other periods including 2007 and 2014 each time also for 3-4 days for the purpose of getting his passport. He said that his wife travelled in 2007 during a different month to get her passport. I accept this as fact.

22. I noted at the hearing that his passport shows that he also arrived to Lebanon in [October] 2009 along with a stamp which shows that he departed Lebanon in December 2008.

23. I noted at the hearing that his wife’s passport shows that she arrived to Lebanon in[February] 2010 and also departure from Lebanon [in December] 2008.

24. In the applicant’s application for the protection visa it notes that he also travelled to Lebanon in the year 2000. I accept this as fact.

25. Three passports for the applicant were presented with dates of validity being 2007-2012; 2014-2015 and 2015-2020. The applicant said that he obtained the most recent passport personally from the offices of [Government department]. I accept this as fact.

26. The applicant said that his [relative], [Mr A], was interrogated and asked about the applicant. The applicant believes that this occurred around 1987. In his statutory declaration (DF f.178) the applicant claimed that his [relative] belonged to the Lebanese Forces Party and was arrested several times by Hezbollah and that they asked him a few times about the applicant. The delegate’s decision records that at the interview the applicant claimed that his [relative] was killed by Hezbollah. But a death certificate was provided which states that he died of natural causes ‘heart failure; prevalence of cancer; diabetes’ and it specifically states ‘The deceased was not killed or committed suicide’ (DF f.151). At the Tribunal hearing the applicant did not claim that his [relative] was killed by Hezbollah. He did not claim that his [relative] had any engagement with Hezbollah that related to himself other than in 1987. Considering the applicant’s failing memory and that at the hearing he did not claim that his [relative] was killed by Hezbollah and giving strong weight to the documentary evidence provided by the applicant I accept that the applicant’s [relative] died of natural causes.

27. I accept that the [relative] was taken as described above in 1987 as it was a time of conflict and such things would be expected to occur.

28. I note the representative’s argument in a post hearing submission that Hezbollah, believing the applicant to be a spy, could have released him so that they could ‘track his movements, gain more information from him or to monitor his activities before they killed him.’ I find such a claim to be speculative without any evidence to support it.

29. I accept that his [relative] was asked about the applicant as the applicant claimed. It is possible that it was done in a manner that a detainee would be asked about other family members and relatives through the course of an interrogation. It is possible that Hezbollah combatants knew of him and were familiar with the family. There are many possibilities. Due to the circumstances under which the applicant was detained, namely at a random checkpoint rather than being personally pursued for some act, and then released [number] days later rather than being held longer, I do not accept that the applicant was of interest to Hezbollah in a manner that would extend beyond the circumstances of the conflict (1975-1990). This finding is reinforced by reasoning given below regarding the applicant’s repeated engagement with the government to obtain his passport despite Hezbollah being intertwined in the government (see [38]).

30. The applicant is a [number] year old man with several health conditions. He had surgical interventions in 1999 and 2011for a [medical] condition. He has moderate dementia. I accept this as fact.

    Considerations

31. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

32. At the hearing the applicant stated that he fears Hezbollah have an interest in him because in the past they had accused him of cooperating with Lebanese Christian parties and because his [relative] is a member of the Lebanese armed forces and was caught by Hezbollah. For that reason he suspects that Hezbollah thinks that he is also related to the government. He acknowledges that Hezbollah are now a part of the government.

33. The applicant expressly denied fearing return to Lebanon because of his religion. Country information consulted on this matter supports the view.[1] As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of religion.

    [1] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report: Lebanon’, 19 March 2019 at [3.16]

34. The representative provided country information about the situation of [Country 1 people] in Lebanon including that the Lebanese Foreign Affairs Minister stated on 15 June 2019 that [Country 1] refugees in Lebanon were taking jobs from the Lebanese. The representative in their submission argued that this represented the type of tense environment that the applicant would be entering into as a result of his [Country 1] accent. As the applicant is not of working age he does not face employment discrimination. Nevertheless, I asked if the applicant believed that his [Country 1] accent will lead to any reaction to which he responded that he did not believe so as there are a lot of [Country 1 people] in Lebanon. There is no country information to suggest that his accent would put someone of his circumstances at risk.[2] As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of his accent.

    [2] I consulted DFAT Reports, Refworld and CISNET databases along with Google keyword searches.

35. I asked whether there was a reason for me to believe that medical treatment would be withheld from him because of who he is. He responded that he doesn’t know. There is no country information to suggest that it would be.[3] As such I find that the applicant does not face a real chance of serious harm or a real risk of significant harm for reasons of his medical needs.

    [3] I consulted DFAT Reports, Refworld and CISNET databases along with Google keyword searches.

36. I now turn my mind to consider the applicant’s fears of Hezbollah arising from his previous detention in 1976, his [relative]’s detention in 1987 and his family’s associations with the government. I noted at the hearing that Hezbollah were intertwined with the government and the applicant affirmed this. Furthermore, the applicant had provided country information (DF f.169) to support this view:

    As a political party, Hezbollah won 13 seats in the 2009 Lebanese parliamentary elections and is a coalition partner in the current government. It has aligned itself with other political parties that support Syria and Iran and oppose the pro-democracy March 14th alliance, which organised and led the brief Cedar Revolution in Lebanon that expelled Syria as an occupying power. (March 14th is aligned with the United States, France, Egypt, and Saudi Arabia.) Hezbollah has proved adept at political power-brokerage. It has allied with former Lebanese Christian general Michel Aoun and his powerful Christian political party, the Free Patriotic Movement, to create a bloc that has substantially boosted Hezbollah’s political clout.

    Hezbollah has been able to use its aligned parties to induce paralysis in the Lebanese parliament and essentially veto any government legislation which attempts to disarm the movement or take over its private telecommunications network. For instance, in 2008, Hezbollah ally Nabih Berri, the speaker of the Lebanese parliament, refused to open the chamber for debate on electing a president to replace the outgoing pro-Hezbollah and pro-Syria President Emile Lahoud. The reason was simple: Hezbollah did not wish to allow the election of a new executive who would be unfriendly to its agenda. In September and October of 2010, Hezbollah even used its allies in the Lebanese government to attempt to shut down the activities in country of the UN Special Tribunal for Lebanon because it did not want its own members named in the Hariri killing.

37. The circumstances of the Lebanese sectarian civil war which ended in 1990 are very different to the circumstances that the applicant returned to during his visits to Lebanon and the country he would return to now. The interests Hezbollah would have had with the applicant then would be very different to now. The country is not at war with itself, Hezbollah, as noted by the applicant and confirmed by the above country information passage is involved in the government and there are hundreds of thousands of [Country 1 people] residing in Lebanon. The applicant is no longer of military age. It is this context that I bear in mind when considering whether the applicant faces a real chance of serious harm or a real risk of significant harm.

38. I note that the applicant entered and left Lebanon on at least 5-6 occasions through official check points using his own passport over a period of 15 years since the end of the conflict in 2000 when Israel withdrew from southern Lebanon. There is no claim that at any stage he was stopped or that his name triggered any interest. For the purpose of considering whether the applicant would be identified by Hezbollah it is less relevant how long he remained in Lebanon, but rather what matters is that he went through official checkpoints using his own passport and personally obtained three passports including on at least one occasion attending the [Government department] offices. Considering that this period of travel overlaps with a time when Hezbollah were in government and as per the above country information they would have had the ability to access the government apparatus, I find that the applicant is not of interest to Hezbollah and has not been of interest for quite some time. For this reason I find that was the applicant to return to Lebanon he would not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of his removal to Lebanon from Hezbollah for any reason including but not limited to his past capture, his family’s involvement with the Lebanese government and his [relative]’s detention.

1. I have also considered the applicant’s circumstances cumulatively, namely that he is an elderly Christian with health problems who speaks Arabic with a [Country 1] dialect and has a family that supports the Lebanese government, a [relative] who was detained by Hezbollah and he himself was detained by them forty years ago. Considered cumulatively I do not accept that these circumstances would lead to the applicant facing a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Lebanon.

2. The second named applicant did not appear before the Tribunal. The representative noted that she has dementia and conveyed a doctor’s opinion that she would not be a reliable witness. The claims put forward on her behalf were those associated with her husband, her [Country 1] accent and health challenges. For the same reasons outlined above, namely that her husband does not face a real chance of serious harm or a real risk of significant harm from Hezbollah, that there is no available information that [Country 1] accents would expose the applicants to harm or that there is a possibility of the withholding of medical treatment, considered individually and cumulatively, I find that the second named applicant does not face a real chance of serious harm into the reasonably foreseeable future or a real risk of significant harm as a necessary and foreseeable consequence of being removed to Lebanon.

3. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.

   DECISION

4. The Tribunal affirms the decision not to grant the applicants protection visas.

   Denis Dragovic
   Senior Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   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 the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (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.

   …