1619735 (Refugee)

[2020] AATA 81

1619735 (Refugee) [2020] AATA 81 (15 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619735

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Jane Marquard

DATE:15 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2020 at 11:45am

CATCHWORDS
REFUGEE – protection visa – Thailand – non-appearance before the Tribunal – outstanding debt to an illegal gaming house – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426A
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76

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. The applicant is a [age] year old citizen of Thailand. He arrived in Australia [in] August 2009 on a [student visa]. After this he departed and re-entered Australia on three occasions. His most recent arrival was [in] April 2012.

2. He applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 23 March 2016.

3. A delegate of the Minister for Immigration and Border Protection (the Department) refused to grant the visa on 14 November 2016.

4. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal). The Tribunal must determine whether the applicant meets the refugee or complementary protection criteria set out in the Act. A summary of the relevant law is set out in Attachment A. An extract of the legislation is set out in Attachment B.

   CLAIMS AND EVIDENCE

   The evidence taken into account

5. In coming to a decision the Tribunal has taken into account the evidence produced to the Department and independent sources about Thailand.

6. The Tribunal wrote to the applicant on 13 November 2019 advising that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing to be held on 16 December 2019.  The invitation advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice or taking further action to enable him to appear before the Tribunal.

7. On 16 December 2019 the applicant returned the Response to Hearing Invitation form. He advised the Tribunal that he would not be attending the hearing. The applicant did not appear before the Tribunal on the day and at the time and place he was scheduled to appear, and has had no further contact with the Tribunal. In these circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

   Summary of evidence before the Department

8. A summary of the evidence provided to the Department is set out below.

9. The applicant stated that he was born in Nakhon Sawan, where he lived until he came to Australia. He is of Thai ethnicity and is a Buddhist. Nakhon Sawan is in central Thailand.

10. His parents and brother are residing in Thailand.

11. He attended secondary school in Nakhon Sawan, finishing in [year], just prior to travelling to Australia.

12. The applicant stated that he came to Australia to further his studies.

13. He said that on his last visit to Thailand, his father was ill and his family had some financial hardship. He wanted to find ways to earn some quick money so he placed some bets on the soccer match competitions with an illegal gaming house. He lost the bets and was forced to pay his debts. He did not have the money to repay.  He was given a time frame to pay his debts before something bad could happen to him. Three armed men gave him this deadline, and he was pushed and shoved. He was afraid to tell his father as his father was ill. He escaped the debts and returned to Australia to continue his studies.

14. He said that he could not seek help as he did not want his family to know about the trouble he caused. He said that the authorities could not help him as the gaming house is well-connected with police and politicians. If they knew he reported the incident, his life would be at risk.

15. He claimed he feared for his own safety. He has no money to repay the debts and he may end up dead. He also fears being put to work as a courier for illegal substances.

16. He claimed that he cannot relocate as he would be found.

    Independent country information

17. The Tribunal has considered relevant country and media reports from a variety of sources. The most relevant of these sources are referred to and cited in the findings.

    DECISION OF THE DEPARTMENT

18. The delegate of the Department was not satisfied that the applicant faced harm for one of the reasons set out in the legislation and therefore found that he did not meet the refugee criteria. In regards to the complementary protection criteria, the Department found that the applicant could obtain protection from the authorities such that there would not be a real risk of significant harm.

    FINDINGS AND REASONS

    The refugee and complementary protection criteria

19. The Tribunal must be satisfied that the applicant meets the refugee or complementary protection criteria. In summary, in order to meet the refugee criteria, an applicant must have a well-founded fear of persecution for reasons of race, religion, nationality, membership or a particular social group or political opinion. To meet the complementary protection criteria, there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, there is a real risk of significant harm.

20. The findings of the Tribunal, based on the evidence provided, are set out below.

    Nationality/receiving country

21. The applicant provided a copy of his passport. The Tribunal is satisfied on the basis of the passport and other particulars provided, that the applicant is a citizen of Thailand, and that Thailand is the receiving country for the purposes of the legislation.

    Findings of fact

    The reasonable approach to fact-finding

22. When assessing claims the Tribunal must make findings of fact in relation to the claims. It is generally accepted that the Tribunal should adopt a reasonable approach to making its findings with regard to credibility, based on relevant and material facts. The Tribunal accepts that ‘if the applicant's account appears credible, he or she should, unless there are good reasons to the contrary, be given the benefit of the doubt’.[1]  The benefit of the doubt should only be given where ‘all available evidence has been obtained and checked and where 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’.[2]

    [1] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196

    [2] United Nations High Commissioner for Refugees, Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 204

23. This approach is supported in numerous judgements and commentaries. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:

    … understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies.  Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.  The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.

24. The Tribunal has before it only the brief written statements on the protection visa application form. The information is lacking in material and relevant detail in significant respects. The applicant’s appearance at a hearing would have provided an opportunity to address the various gaps, and to discuss what further information and details are available. Among the claims on which the Tribunal has insufficient evidence before it are the following:

    ·Details of his father’s illness;

    ·Details of financial hardship;

    ·Efforts made to approach legal lending facilities;

    ·The bets placed;

    ·Information on the illegal gaming house;

    ·The details of the time frame and conditions of the repayment agreement;

    ·Details of family members in Thailand and ability to contribute to repayments;

    ·Details of education and work experience;

    ·Details of assets and funds;

    ·Details of how the applicant paid for study and living expenses in Australia and various trips back and forth to Thailand;

    ·Details of efforts made to repay;

    ·Details of threats;

    ·Details of contact with authorities if any;

    ·Details of ongoing contact with illegal gaming house, if any;

    ·Details of harm he fears particularly as the events took place seven years ago;

    ·Details of the reason for the persecution feared;

    ·Possibility of relocation and state protection; and

    ·if the threats took place in 2012, why he waited until 2016 to apply for a protection visa.

25. On the limited available material, the Tribunal is unable to be satisfied that the applicant placed bets on soccer match competitions with an illegal gaming house and did not have money to repay the debts. Indeed other than the statements in his application there is no evidence provided of his father’s illness, the hardship suffered, the illegal gambling house or the bets made. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Such evidence has not been provided.  On the limited evidence provided, the Tribunal also is unable to be satisfied that three armed men gave the applicant a time frame to pay his debts before ‘something bad could happen’ to him, and pushed and shoved him. The Tribunal is unable to be satisfied that the applicant genuinely fears harm from lenders, and escaped to Australia so as to avoid them. This conclusion is supported by the fact that the applicant did not apply for protection from 2012 until 2016.  The Tribunal has taken into account this period of time that has elapsed between the applicant’s arrival in Australia and the application for protection, although this is not the sole reason for finding that the applicant’s claims are not credible, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346. The Tribunal is also unable to be satisfied that the illegal gaming house continues to press him for money.

26. In sum, the Tribunal is unable to be satisfied that the applicant experienced threats due to unpaid money owing or has suffered any harm or other problems that amount, individually or cumulatively, to ‘serious harm’ (for the reasons set out in s.5J(1), or for any reasons at all). It is also unable to be satisfied that he has suffered any harm that amounts to ‘significant harm’. The Tribunal is also unable to be satisfied that the applicant genuinely fears harm.

    Does the applicant meet the refugee or complementary protection criteria?

27. The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.

28. The concept of ‘well-founded fear of persecution’ is further defined in s.5J of the Act. It provides that a person has a well-founded fear of persecution if:

    • the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;  and
    • 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 above; and
    • the real chance of persecution relates to all areas of a receiving country.

29. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.   It is clear from the Explanatory Memorandum to the Bill introducing s.5J, that Parliament intended that this same threshold be used to assess claims under s.5J.

30. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA of the Act. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

31. As set out above the claims made are characterised by an absence of material and relevant facts. As the Tribunal is not satisfied that the applicant owed money to an illegal gaming house, or suffered any harm from the people associated with this house, or that he genuinely fears harm from them in the future, the Tribunal is unable to be satisfied that there is a real chance of serious harm from people associated with the gaming house. The Tribunal is also not satisfied that any such harm would be for one of the reasons set out in the legislation, race, religion, nationality, membership of a particular social group, or political opinion.

32. The Tribunal is not satisfied therefore that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation were he to return to Thailand in the reasonably foreseeable future.

33. If a person is found not to meet the refugee criterion he or she may nevertheless meet the criteria for the grant of a protection visa if there are 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 or she will suffer significant harm: (‘the complementary protection criterion’).

34. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

35. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted, for reasons set out earlier that the applicant owed money to an illegal gaming house which he could not pay and was then threatened by people associated with the house. Following from this finding, the Tribunal has also found that the applicant does not face a real chance of serious harm from people associated with this house if the applicant returned to Thailand in the reasonably foreseeable future. For the same reasons, and on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.

36. The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand there is a real risk of significant harm.

    CONCLUDING PARAGRAPHS

37. 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).

38. 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).

39. 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

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

    Jane Marquard
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    CRITERIA FOR A PROTECTION VISA

41. 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.

42. 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.

43. 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).

44. 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.

1. 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

2. 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.

   ATTACHMENT B- EXTRACT FROM THE 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.

   …