1612303 (Refugee)

[2017] AATA 2667

1612303 (Refugee) [2017] AATA 2667 (3 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1612303

COUNTRY OF REFERENCE:                  Malaysia

MEMBERS:Brendan Darcy (Presiding)

Jason Pennell

DATE:3 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 November 2017 at 2:13pm

Statement made on 03 November 2017 at 2:13pm

CATCHWORDS
Refugee – Protection visa - Malaysia – Economic – Indebtedness to unlicensed money lender - Fabricated claims for migration purposes – Credibility concerns

LEGISLATION
Migration Act 1958, ss 5, 5H, 5J, 5K-LA, 36, 65, 425,499
Migration Regulations 1994, Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam (1999) 93 FCR 220

Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437

Selvadurai v MIEA & Anor (1994) 34 ALD 347

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] July 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 Malaysia, applied for the visa [in] May 2016. The delegate refused to grant the visa on the basis that the effective protection measures were available to the applicant and that the applicant does not satisfy s.36(2B)(b).  

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

1. 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

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

Background

1. The applicant claimed to be born in [date] in Klang in the Malaysian state of Selangor and to be a citizen of the Federation of Malaysia.,

2. A copy of the applicant’s valid passport is on departmental file ([number]).

3. The applicant also claimed in his submitted 866C application to  be religiously Muslim; and to be able to speak read and write Bahasa Malaysia and that he can read and write English.

4. The applicant claimed to have limited education in that he had left [school] early and had no further education.

5. The applicant claimed that he has never married, been engaged or in a de facto marriage and claimed that he has no children.

6. The applicant arrived in Australia [in] February 2016 while holding a [temporary] visa and that he applied for a class XA subclass 866 protection visa [in] MAy 2016.

7. According to the applicant’s submitted 866C form, the applicant made the following limited claims for protection:

• The applicant claimed that he had been harmed by the agent who had promised the applicant work and after arriving in Australia he was asked to work [in a workplace];

• The applicant claimed that he would face financial hardship, it would be difficult to rebuild his career and that he feared harm from the agent’s gang.

1. A delegate for the Minister refused to grant the visa [in] July 2016. The applicant applied to the Tribunal to have the delegate’s refusal decision reviewed on 8 August 2016.

2. On 25 October 2017, the applicant provided evidence and presented arguments that he was owed Australia’s protection obligations via teleconference (while in [Town 1]). The applicant was assisted by an interpreter in the English and Mandarin languages and he did not have any representation through a registered migration agent or lawyer. 

3. During the course of the hearing, the applicant requested a witness whom he assumed was available to provide testimony. However, the applicant was unable to locate the witness. The Tribunal invited the applicant to have the witness provide a written statement.

4. During the hearing, the applicant claimed that both his parents were born in [Country 1], that his mother was a citizen of Malaysia and that he identified as Malay as he spoke Bahasa Malaysian and was Muslim.

5. At the end of the hearing the applicant undertook to provide a witness statement and any other submission to support his claim by 1 November 2017.  At the time of writing this decision, the Tribunal had not received any further submissions.

FINDINGS AND REASONS

Country of nationality

1. The applicant claims to be a citizen of Malaysia and provided copies of her passport to the Department with her protection visa application. The Tribunal finds that the applicant is a citizen of Malaysia, that Malaysia is the applicant’s receiving country for the purposes of the refugee and complementary protection assessment.

Third country protection

1. There is no evidence before me to suggest that the claimant has the right to enter and reside in any safe third country for the purposes of s.36(3) of the Act.

Credibility

1. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

2. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

3. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.)

6. Overall the applicant is found by the Tribunal to be lacking credibility. The applicant’s written claims were very vague and limited; although the applicant had the opportunity to elaborate on his claims during a scheduled hearing, the applicant’s testimony was often vague and evasive. The applicant also provided changed testimony which, in the context of other credibility concerns, further undermined the applicant’s credibility.

7. Nevertheless, there are a limited number of straightforward claims about the applicant’s background and family composition that the Tribunal accepts to be credibility: The Tribunal accepts that the applicant was born in [year] in Selangor as claimed; it accepts that his parents continue to live in Klang in Selangor. The Tribunal also accepts that the applicant is ethnically Malay; that religiously he is a Muslim; and that he can speak, read and write Bahasa Malaysia and understand some English and has limited education. It also accepts that the applicant has never married, been engaged or lived in a de facto relationship in the past and that he had no children.  

8. The applicant claimed during the scheduled hearing that he borrowed [amount] Malaysian ringgits from an [agent], named [name] whom he spoke to over the phone. The applicant claimed he borrowed the money in order to cover the cost of gaining a passport, an airfare to Australia, [a certain kind of] work in Australia, some accommodation as well as the agent’s services.  The applicant described the agent as an ‘unregistered’ or an unlicensed money lender. Later in the hearing, the applicant claimed that the amount was also used for two other friends for the same services. The applicant claimed that he had not paid any of the money back to the agent; although he claimed the two friends had paid him some of the money to be forwarded to the agent. The applicant claimed that he will not be able to return to Malaysia because the [agent] has criminal associates who will be able to locate him anywhere within Malaysia.   The applicant claimed he was very disappointed because he and his friends, one of which was ‘onsite’ with him, as the work was illegal when they arrived.

9. Of particular credibility concern to the Tribunal was the applicant’s changed testimony about the loan agreement with the [agent] he claimed borrowed a sum of money. Firstly, the applicant claimed that he has a copy of a loan agreement and that he would attempt to gain a copy for the Tribunal. In this regard, he added that it was left with friends with whom he shared accommodation back in Malaysia and that he did not take a copy of the agreement on his phone as he was confident in gaining rewarding work in Australia. The Tribunal asked if the applicant could contact the [agent] for a copy of the agreement; to which the applicant responded that he was no longer in contact with the agent as he had not repaid any money. At this point in the hearing, the applicant changed his testimony that no loan agreement had actually existed so he would be unable to provide a copy and apologised to the Tribunal for the confusion.  The Tribunal finds the dramatic changed in testimony invited it to consider that the applicant had embellished or contrived the specific claim about having a loan. 

10. Secondly the Tribunal found that the claimed amount of borrowed was excessively high for the services rendered. When the Tribunal queried the applicant that the amount to cover his costs coming to Australia for work purposes appeared to be excessive, the applicant claimed he had deceived the agent that the loan was for business purposes and that he divided the amount three ways between two friend, one of which was ‘onsite’ or with the applicant.  Later in the hearing, the Tribunal asked if it could provide a witness to support his claim to which the applicant responded that he had lost contact with his friends. The applicant was reminded of his earlier testimony and then added that his friend had travelled to the hearing with him and was available to provided evidence. The applicant was given permission to locate his friend but was unable to bring him to the Tribunal in a timely manner. The Tribunal provided the applicant an opportunity to provide a witness statement to support his claims; however the applicant did not submit any witness statement of any kind by the required date. This lack of responsiveness strongly indicates to the Tribunal that there was no credible witness and that that his specific claim was not credible. Moreover the applicant’s evasive approach to providing the Tribunal with both oral testimony and third party supporting evidence strongly indicated that the applicant’s overall claims to be contrived for migration purposes.  

11. Thirdly, the applicant had provided two different accounts about the reasons for his borrowed money. On the one hand the applicant provided written and oral reasons for the purpose of the loan was to arrange lawful work in Australia; on the other hand, the applicant changed his earlier testimony when he said that the applicant had informed the money lender the purpose of the loan was for a business. It is not consistent to claim to the Tribunal that the applicant made claims he was harmed by being lured into unlawful work in a foreign country and to claim that the purpose of the loan was for a completely different purpose. Based on this inconsistency and in the context of the Tribunal’s other credibility concerns, the applicant have further invited the Tribunal to consider the claims about a loan were contrived or fabricated for migration purposes.

12. Fourthly and relatedly to the third credibility concern, it was not consistent for the applicant to have specifically claimed that he collected money owed to himself when he had claimed to have defrauded an agent or money lender with the intent to be shared among two other Malaysians.

13. There were other aspects of the applicant’s claims that were weak, such as receiving threatening or harassing calls from the putative [agent] and that he not only ‘deleted’ or block the phone number but unnecessarily threw away the mobile phone. In the context of the Tribunal’s other credibility concerns, this lack of documentary or evidentiary material and the reasons for their absence invited the Tribunal to consider that the reason for the lack of evidence in this regards was because the claims had been fabricated.  The applicant also claimed that he sighted [certain people] near his boarding house as evidence that the agent was seeking him. The Tribunal finds this particular evidence to be implausible, far-fetched and speculative.

14. The applicant was also provided with an opportunity to provide any evidentiary material, including from a witness statement from a fellow Malaysian whom he had been travelling with and working alongside while in Australia. However the applicant has not submitted any third party statements in favour of his claims despite having the opportunity to do so through a post-hearing submission. The Tribunal finds that this lack of responsiveness further indicates to the Tribunal that the applicant’s claims were not genuine and that his otherwise limited and weak written and oral claims had been fabricated for migration purposes.

15. In this decision, the Tribunal acknowledges that many Malaysian nationals accrue debt from unlicensed money lender and this indebtedness can entail threats, harassment and harm that it may be plausibly applicable to this review applicant.

16. However, the Tribunal’s adverse credibility concerns are so extensive that it is unable to provide that the applicant the benefit of the doubt regarding the applicant’s considerably weakened claims about indebtedness to an unlicensed money lender. The applicant provided very vague and unsubstantiated written claims and these claims were seriously undermined by the applicant’s oral evidence that were at different times, evasive, changed, inconsistent and mutually unsupportive. They were also weakened by the lack of the applicant’s non-responsiveness to a post hearing submission.  

17. Accordingly, having considered the applicant’s weak, inconsistent and unsubstantiated evidence, both individually and cumulatively, the Tribunal does not accept the applicant has any credible or reliable evidence to support the applicant borrowed a sum of money from any unlicensed or licensed money lender or agent of any ethnicity in the past. It does not accept that the applicant was harmed, harassed, monitored or threatened in the past by any persons of any ethnicity as claimed by the applicant and that he will be able to return to Malaysia without being seriously and significantly harmed by any claimed persons for any of the reasons claimed or mentioned in s.5J(1)(a).  Indeed the Tribunal is so concerned by the applicant’s lack of credibility it is not satisfied that he has any indebtedness back in Malaysia at all and this was the reason the applicant was unable to provide any supporting documents.

18. Based on the Tribunal’s overall adverse credibility finding that the applicant has not provided any reliable evidence about his dispositive claims, the Tribunal finds that the applicant does not have any genuine, personally held or subjective fears of persecution, including arising from economic or financial hardship for any of reasons mentioned in paragraph s.5J(1)(a) at the time of application, now or into the reasonably foreseeable future as the applicant’s claims for protection were contrived solely for migration purposes.

1. Accordingly, the Tribunal finds that the applicant does not have a real chance of serious harm, if returned to Malaysia, for one or more of the reasons mentioned in paragraph 5J(1)(a), now or into the reasonably foreseeable future.

2. The Tribunal finds that the applicant does not have a well-founded fear of persecution for and that he does not satisfy the criterion set out in s.36(2)(a).

3. Having considered the applicant's claims, both individually and cumulatively, and based on the same extensive adverse credibility findings outlined under s.36(2)(a), the Tribunal finds there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to anywhere within the Federation of Malaysia there is a real risk the applicant will suffer significant harm, by way of being arbitrary deprived of his life; that the death penalty being carried out on him; that he will subjected to torture; be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment.

4. Therefore the applicant does not satisfy the criterion set out in s.36(2)(aa).

Additional Finding

1. During the hearing, the applicant raised at the beginning of the hearing that he had difficulties in hearing the interpreter. After adjusting some of the positioning of the audio equipment, the hearing proceeded and where clarifications were required they took place and it notes the applicant responded to the Tribunal’s questions in an orderly manner. The Tribunal is accordingly confident that the applicant was provided with a meaningful opportunity to answer all of its questions and comments, consistent with s.425 of the Act.

Conclusions

1. 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).

2. 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).

3. 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

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

Brendan Darcy
Member

Jason Pennell
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.

…