1619317 (Refugee)

[2019] AATA 4785

1619317 (Refugee) [2019] AATA 4785 (4 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619317

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Paul Noonan

DATE:4 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 June 2019 at 2:07pm

CATCHWORDS
REFUGEE – protection visa – Vietnam –social group – returnee with drug conviction – ex-employee owing money to Vietnamese company – lack of evidence – inconsistent evidence – credibility issues – no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 423, 499
Migration Regulations 1994 (Cth) Schedule 2

CASES
Guo v MIEA (1996) 64 FCR 151
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIEA v Wu Shan Liang (1996) 185 CLR 259

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 on 28 October 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 Vietnam applied for the visa on 10 June 2016. The delegate refused to grant the visa on the basis that that there is no real chance of persecution of the applicant in Vietnam and also that there is no real risk that the applicant will suffer significant harm in Vietnam as a necessary and foreseeable consequence of being removed from Australia.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in this case are whether the applicant meets the refugee criteria or the complimentary protection criteria outlined earlier in these reasons. The applicant contended that he does meet the refugee criteria for reasons related to:

   ·his membership of a particular social group being people returning to Vietnam with a drug related conviction in Australia and;

   ·his membership of a particular social group being an ex-employee of a Vietnamese company who owes money to the Vietnamese company.  

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

11. The applicant appeared before the Tribunal on 27 May 2019 and gave evidence on oath. The Tribunal was assisted by an interpreter in the Vietnamese language during the course of the hearing.

    Refugee analysis - membership of a particular social group being people returning to Vietnam with a drug related conviction in Australia.

12. The Tribunal noted that the applicant’s Department file contained an Australian National Police [Certificate]. This certificate states that the applicant was convicted in the [Court] [in] March 2015 of the offence: Cultivate / Possession Narcotic Plant – Cannabis. The result was a conviction with a community correction order for 12 months to perform 200 hours of unpaid community work. The Tribunal accepted this evidence.

13. The applicant submitted that he fears harm from the Vietnamese authorities due to this Australian drug conviction. The Tribunal put to the applicant that country information prepared by the Department of Foreign Affairs and Trade (DFAT) reports that:

    4.7 According to the Ministry of Justice (MoJ), the principle of double jeopardy applies in Vietnam. Persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.[1]

    [1] Department of Foreign Affairs and Trade – Country Information Report – Vietnam, 21 June 2017, p. 20

14. The Tribunal also put to the applicant that DFAT are not aware of any cases where a person has been subject to double jeopardy in Vietnam or cases indicating that persons involved in cannabis cultivation overseas are mistreated on return to Vietnam. [2] The applicant stated that it could be that double jeopardy will not apply to him but that it would still be difficult for him to find a job as prospective employers would be aware of his conviction in Australia and he may also be alienated by his village due to his conviction in Australia. He submitted that his village was aware of his conviction because some friends in Australia may have told their families.

    [2] ‘Vietnam: VNM CI170516145908101 – Treatment of failed asylum seekers who illegally departed Vietnam and double jeopardy’, Country of Origin Information Services Section (COISS), 24 May 2017, CR8DFDCEA161

15. The Tribunal accepted that the applicant may have some difficulty finding a job in Vietnam if he declared his Australian drug conviction. However, balanced against this concern is that the applicant has a substantial history of employment in Vietnam and in Australia. He gave evidence that he has worked on a full time basis in Australia for the past five years as a [Occupation 1] in [Industry 1]. The Tribunal has considered the latest DFAT report and other relevant country information in respect to Vietnam and found no information that suggested a person convicted of a minor drug offence in Australia would consequently find it difficult to obtain employment in Vietnam. The Tribunal considered the applicant will eventually be able to find a job in Vietnam such as in [Industry 2] or [Industry 1]. He is young and in good health. When asked how prospective employers may come to know of his minor drug conviction in Australia the applicant merely asserted his belief that they would. The Tribunal was unable to find any information in the DFAT report that indicated a minor drug conviction in Australia would readily become ascertainable by prospective employers in Vietnam. As set out in s5J(4) and (5) of the Act for conduct to be persecutory it must involve serious harm such as a threat to life or significant physical mistreatment or economic hardship that threatens a person’s capacity to subsist. The Tribunal does not accept that the applicant would face hardship to a degree that he would be unable to subsist.

16. The Tribunal was unable to find any country information in the latest DFAT report, (such as that people with overseas drug related convictions are habitually alienated from their home area) to suggest that the applicant would face alienation from his village as claimed. The applicant did not give any specific evidence of attitudes towards him from villagers due to his drug conviction and was unsure that they had in fact been informed of this occurrence. He was rather speculating that they may have become aware of this occurrence as his friends in Australia may have informed them. He had not actually ascertained if this was in fact the case. The Tribunal considered the applicant was merely speculating in respect to this expressed fear of harm. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said:

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[3]

    [3] MIEA v Guo (1997) 191 CLR 559 at 572; cf MIEA v Wu Shan Liang (1996) 185 CLR 259 at 293.

17. The applicant also claimed that his parents have received a blackmail threat asking for money on the basis of his drug conviction in Australia. The applicant confirmed that he had never dealt or used drugs in Vietnam. The Tribunal noted that his written claim stated that this blackmail threat was made out in the basis that he had used and sold drugs in Vietnam in 2012. The applicant stated this was a mistake and his parents had received the blackmail threat in writing some six months after his arrest in Australia. He stated that the blackmail letter had been lost. He confirmed that his parents had not received any more blackmail threats and had not reported the matter to the authorities.

18. The Tribunal found the applicant’s evidence was contradictory in respect to the basis upon which the blackmail threat was made and lacking in detail. At the very least the Tribunal would expect a copy of the blackmail letter to have been retained. The Tribunal did not accept this evidence in respect to blackmail as credible for these reasons and gives it no weight in its deliberations.

19. After considering the applicant’s evidence as set out earlier in these reasons, in conjunction with the cited country information, the Tribunal concluded that there is no real chance of him being harmed for reasons related to his membership of a particular social group being people returning to Vietnam with a drug related conviction in Australia now or in the reasonably foreseeable future. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for this reason claimed if he returns to Vietnam.

    Refugee analysis - membership of a particular social group being an ex-employee of a Vietnamese company who owes money to the Vietnamese company

20. The applicant raised this claim for the first time during the hearing. He had not previously raised this claim in his written claims for protection made out to the Department on 9 June 2016. The applicant asserted that he had made this claim previously. The Tribunal confirmed that his written claim to the Department made no such claim. The applicant stated that he had told his previous representative about this claim. He asserted that his representative must have forgotten to write the claim down. The Tribunal noted that s.423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of the applicant’s claim where an applicant raises a claim not put forward before the primary decision was made where the Tribunal is not satisfied they have a reasonable explanation for the omission.

21. The Tribunal asked why he fears his ex-employer. The applicant stated this was because his employer had paid for his travel and study to Australia. After receiving news that his fiancé in Vietnam had married another man he had stopped studying and he has not paid his employer back their costs. About one year later his employer called him and threatened that they will sue him or beat him up. The Tribunal asked the applicant if he had any written evidence of his arrangements with his former employer or any evidence of threats or action by his ex-employer. The applicant stated that he had no written evidence of contracts, agreements or subsequent threats from his ex-employer. He confirmed his ex-employer was a company trading as [Named Company]. He had worked for them for over a year as a [Occupation 2]. He owed them [a sum of money]. The Tribunal noted that in his claim for protection he had recorded this company as his employer for the past three years and his occupation as a [Occupation 3].

22. The Tribunal found the applicant’s new claim and evidence in respect to threats of harm from his ex-employer to be highly unconvincing. The Tribunal would expect some written documentation such as a written agreement with his ex-employer in respect to his studies in Australia and evidence of correspondence from his ex-employer in respect to demands for monies owed.

23. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[4]  However the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed.  Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 

    [4] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

24. 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.

25. A decision-maker is not required to accept uncritically any and all of the allegations made by an applicant. 

26. The Tribunal has considerable doubts about the claim made by the applicant in respect to fearing harm from his ex-employer. He did not mention this claim in his original written claim for protection, despite this clearly having been made after he stated he received threats from his ex-employer. The Tribunal found his claim that he had put this fear to his ex-lawyer who had not then made out the claim in his application to be unconvincing. The claim form was detailed in respect to the applicant’s claim to fear harm due to his Australian drug conviction and the Tribunal did not accept that a detailed claim such as this, in respect to one integer of the claim, would simply omit another major integer of the applicant’s claims. The Tribunal considered that the applicant provided no reasonable explanation as to why this new claim was not made out in his original claim. Further he provided no written documentation of any kind to evidence that his ex-employer had paid for his trip to Australia and his studies nor that his ex-employer had made subsequent demands for repayment of it’s expenditure in this regard after he ceased his studies. The applicant simply stated that he no longer retained such documentation. The Tribunal considered the applicant’s explanation for not retaining any written evidence in respect to arrangements with his ex-employer, in circumstances where he claimed to have received threats of being sued and or harmed, to be to be lacking in reasonable plausibility and lacking in credibility.

27. The Tribunal does not accept the applicant’s claim that his former legal representation simply forgot to make out this claim as a reasonable explanation for why the claim was not raised, or the evidence was not presented in the application, before the primary decision was made. As such the Tribunal is required to draw adverse inferences as to the credibility of the claim. On the basis of the above considerations the Tribunal does not accept that the applicant’s trip to Australia and studies was paid for by his ex-employer nor that he has received threats of harm from his ex-employer while in Australia. The Tribunal rejects the applicant’s claim as having no credibility.

28. In summary the Tribunal has rejected the applicant’s claim as having no credibility. In the absence of any other claim advanced as to why the applicant may face harm upon return to Vietnam, the Tribunal found that the applicant has no real chance of being harmed as a member of a particular social group being an ex-employee of a Vietnamese company who owes money to the Vietnamese company, now or in the reasonably foreseeable future. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for this reason claimed if he returns to Vietnam.

    Conclusion – Refugee analysis

    It follows, given the reasoning of the Tribunal as set out earlier in these reasons that the Tribunal does not accept the applicant has a well-founded fear of persecution for any reason claimed or for any other refugee ground (being race, religion, nationality, membership of a particular social group or political opinion), either individually or cumulatively, if he returns to Vietnam, now or in the reasonably foreseeable future. As such the Tribunal was not satisfied that the applicant has a well-founded fear of persecution on his return to Vietnam either by reason of his membership of a particular social group being people returning to Vietnam with a drug related conviction in Australia or his membership of a particular social group being an ex-employee of a Vietnamese company who owes money to the Vietnamese company. He is therefore not a refugee.

    Complementary protection

29. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal has found that the applicant is a national of Vietnam and the Tribunal therefore finds that Vietnam is the ‘receiving country’ for the purposes of s.5(1) of the Act.

1. For the reasons set out above the Tribunal has not accepted there to be a real chance that if he returns to Vietnam the applicant will be targeted by the authorities or anyone else for reasons related to his status as a person returning to Vietnam with a drug related conviction in Australia or as an ex-employee of a Vietnamese company who owes money to the Vietnamese company. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee definition.[5]  For the same reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm on this basis. For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm as a necessary and foreseeable consequence of being returned to Vietnam.

   [5] MIAC v SZQRB [2013] FCAFC 33 per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297] and Flick J at [342]

2. Having had regard to the applicant’s claims both singly and cumulatively, the Tribunal concluded that there is not a real risk that, as a necessary and foreseeable consequence of the applicant being removed from Australia, that he will suffer significant harm.

   OVERALL CONCLUSION

3. 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).

4. 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).

5. 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 criteria in s.36(2).

   DECISION

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

   Paul Noonan
   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.

   …