1619939 (Refugee)

[2019] AATA 3648

1619939 (Refugee) [2019] AATA 3648 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619939

COUNTRY OF REFERENCE:                  Taiwan

MEMBER:Denis Dragovic

DATE:26 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2019 at 10:24am

CATCHWORDS
REFUGEE – protection visa – Taiwan – credibility – inconsistent evidence – participation in fraud – fear of retribution from criminal gang members – possibility of imprisonment – decision under review affirmed

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

CASES

Applicant S v MIMA (2004) 217 CLR 387

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 7 November 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 Taiwan, applied for the visa on 20 August 2015. The delegate refused to grant the visa on the basis that effective protection measures are available to the applicant.

3. I sighted the applicant’s Republic of China (Taiwan) passport and as such accept that the applicant is a citizen of Taiwan.

4. The applicant appeared before the Tribunal on the 8 February and 22 March 2019. The first hearing was conducted by an authorised person delegated by the member to take evidence under s.428 of the Act.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.  

9. 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

10. 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

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

    Credibility

12. In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed.  A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 -70.)

13. In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.

14. On the other hand, as stated previously, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, 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 established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (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).

15. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

16. The applicant’s protection visa application included the following as his reason for fearing returning to Taiwan:

    When I return to Taiwan, I will put my life in danger as I have witnessed the theft and revenge between the criminal gangsters in Taiwan. An organized criminal gangsters broke into the warehouse where I worked for. One of the gangsters member was - working for the warehouse as well. After my bosses found out it was an inside job and then he got underworld-figures friends to fix up the criminal gangsters and recover the stolen goods. Since then the criminal gangsters have searched after me for revenge because they believed I told the company about their stealing. And my bosses have been after me for punishing me because they thought I was one of the criminal gangsters member.

17. At the first hearing the applicant provided a different claim. In June when he was preparing his visa for Australia he went into an internet cafe and met a girl. He told her that he was going to Australia but was worried that he didn’t have much money. She offered to introduce him to someone who could provide him with a job. She introduced him to “[Mr A]”. [Mr A] gave him a bank card and told him to withdraw money while accompanied by one of his subordinates. He withdrew 60,000 (Taiwan dollars). He took the money back to him and got 3,000 (TWD).

18. In that month he withdrew money from 5-6 different ATMs. Then one day he was watching the news and heard that there is ongoing fraud which involves a person going to different ATMs and withdrawing money and that the person involved was arrested. The applicant was worried about the money he had withdrawn. The next time [Mr A] asked him to withdraw money he asked if he is part of the fraud gang to which [Mr A] admitted that it was illegal what they were doing. The applicant was asked to do it once more and was assured that it would be the last time. He was given 2 cards and together with an associate of [Mr A]’s he withdrew more than 100,000 TWD from the ATM and was paid 33,000 TWD. That afternoon he received a call from [Mr A] asking about the money. He responded that he’d given the money to the associate. [Mr A] sounded drunk, ‘wasn’t talking sense’ and said that he will send someone to bash him. The applicant called the girl who introduced him to [Mr A] and organized to meet with her to give his savings to her asking that she pass it on to [Mr A] and to be left alone. [Mr A] called again and this time the applicant explained that he had given his own money to the girl. [Mr A] said that he didn’t receive the money from the girl and that he hadn’t seen her for a long time. The applicant told [Mr A] that he had given all of his money to the girl so he couldn’t pay anymore. [Mr A] threatened to chop him up and then burn his house. The applicant was afraid and because he had the Australian visa approved he took all the money he had and bought a ticket for Australia and arrived [in] August 2013.

19. During the second year of his time in Australia his mother received two calls asking when the applicant is going to repay the money which was now claimed to be 1,000,000 TWD. His mother wanted to call the police, but the applicant instructed her not to. She then changed her phone number and did not receive any further calls.

20. I discussed with the applicant the contradiction and explained to him s.423A. The applicant said that the claims in the application form are not his. The applicant said that the employment agent who had organised work for him at [Company] had contacted an immigration agent to help him complete the protection application form. He said that it was not read back to him. He said that he has lost contact with the immigration agent since the time they completed the form.

21. I put to the applicant that I found it difficult to believe that the applicant could have provided detailed information to a person who helped him complete the application form and then for that person to input it all accurately other than his claims. He said that the correct claims are the ones about the ATM and that there was no way that he could check what was written as the communication was by email and telephone. I showed the applicant the original application and pointed to the signatures. He said that the signatures on the application form were not his.

22. Considering the different signatures on his passport relative to his application and the general credibility of his explanation I accept the facts as presented to the Tribunal regarding the ‘ATM’ claims and based upon the applicant resiling from the claims in the application form I do not consider them further.

    Country Information

23. I summarized to the applicant the following country information from the Taiwanese Ministry of Interior 2018 report[1] of activities against gangs and loan sharks:

    In the area of subduing hoodlums and gangs, the NPA has adopted two approaches: "prevention in advance" and "suppression in hotspots" to fight against organized crime. To this end, guidelines and programs to eradicate organized crime have been implemented, such as the "Intelligence Collection of Organized Crime," "Preventing Gangs from Publicizing Activities," "Check-ups on Publicly Traded Companies," " Zhi-Pian Anti-Gangster Program" and "National Simultaneous Gang Sweeps." In 2017, apart from suppressing organized crime by "3 Strategies about Gang-Sweeping", the NPA also completed the modification of "Organized Crime Prevention Act". The NPA also implemented "Operation Getting Rid of Bullies" in order to prevent gangsters from committing crimes by hiding themselves in specific political parties or civilian organizations. In addition, the NPA will implement strong systematic gang-sweeping strategies to strike on thugs, gangsters' illegal income, gangsters' business and bouncers in 2018.

    …

    In addition to a total of 39 gang-sweeping operations conducted by county police departments in 2017, the NPA implemented six national simultaneous gang sweeps to safeguard the social security. During the operations, the police arrested 174 high-profile gang leaders and 1,258 gang members. Under the "Operation Searching and Spot Checking against Gangs", the police arrested 2,863 other individuals, and confiscated 128 guns of various models.

    …

    The NPA supervised all police agencies while they investigated on loan sharks (usury) cases, including high-interest loans and illegal debt collection. In 2017, a total of 1,341 suspects were arrested in 745 cases and the total amount of NT$1,646,760,000 were seized.

    [1] 2018 Outline of The Ministry of the Interior: Republic of China (Taiwan), Ministry of the Interior, Government of the Republic of China, November 2018 accessed 18 March 2019

24. He agreed that Taiwanese police are doing a lot against gangs but high profile gang members are joining political groups. I put to him that the people he was involved with aren’t running for parliament. He agreed but he doesn’t know the force behind those people. I further added that the police could have already caught the gang or he could provide information against them to the police. He said that he hasn’t seen his persecutors arrested. I put to him that he doesn’t know [Mr A]’s full name so how would he know if he had been arrested. He acknowledged that fact but then added that the Taiwanese news broadcast he watches put screen shots of individuals they arrest and he could not recognize [Mr A] among them. I put to him that maybe they didn’t broadcast the face of very low level gangsters. He said that they do. I put to him in 2017 they arrested over 1,500 and surely they can’t put all on TV. He acknowledged that its unlikely.

    Considerations

25. I asked the applicant if he could get protection from the police in Taiwan. He said that he believes the police will arrest him first and then charge him. I put to him that the purpose of the opportunity to seek protection in Australia is not to provide protection from being arrested for having broken the law.

26. I note the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook) states:

    56. Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice.[2]

    [2] UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (UNHCR, re-issued 2011) (Handbook) at [56].

27. I asked if it was fair to say that Taiwan has an independent judiciary.[3] He agreed that it’s true. I asked if he would get a fair trial in Taiwan. He said that he would. He said that he is unsure what type of penalty he would face but possibly it would be at least half a year in prison. He is concerned about the prison conditions in Taiwan. I asked him if he fears being treated differently in prison for any reason. He said that he is not certain because he doesn’t know the reach of the Taiwanese gangs into the prisons but as far as the prison officials, he said that he would not be treated differently.

    [3] Legal System of Taiwan, Columbus School of Law, The Catholic University of America accessed 26 March 2019

28. The applicant also fears the gang if he was not jailed. I asked why would they be after the applicant if the money had not been stolen, to which he responded that they were after more money. I asked why they wouldn’t chase someone else who has money rather than the applicant who doesn’t. He noted that his mother had received two threatening calls in 2015. I put to him that they appear unable to find his mum’s new phone number and yet he fears that they could track him upon his return. He acknowledged that he doesn’t know if they have that ability.

29. I find that the applicant does face a real chance of serious harm in the form of deprivation of liberty by being jailed. In considering whether the applicant’s fear of harm is based upon reasons outlined in s5J(1)(a) and specifically whether there is a particular social group as defined by s.5L of the Act that the applicant would belong I have considered groups such as ‘accused criminal’, ‘convicted criminal’, ‘suspected gang member’ and similar variations. In such instances the ties that bind the potential group together breaches the guidance provided in Applicant S v MIMA[4] and as legislated in s.5L(d) as the group is only defined by a shared fear of persecution from the state judicial system. As such the applicant cannot be considered a member of a particular social group. Nor do the circumstances of the case lend themselves to consideration under any other of the Convention reasons. As such I find that s.5J(4) is not met as one or more of the reasons mention in s.5J(1)(a), namely, the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, are not the essential and significant reason for the harm he faces.

    [4] Applicant S v MIMA (2004) 217 CLR 387 at [36]

30. I now turn my mind to consider whether the applicant faces a real risk of significant harm arising from the judicial process and possible incarceration. There is no evidence before me or reason to believe that the applicant would face arbitrary deprivation of life, the death penalty or torture leaving cruel or inhuman treatment or degrading treatment. I note that s.36(2B)(c) states that ‘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 … the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.’

31. The law in Taiwan is applied equally to the population at large. The applicant stated that he thought he would get a fair trial. There is no evidence before me to suggest that he would not. In this instance I find that the real risk is one faced by the population of the country generally and is not faced by the applicant personally. I have considered whether the gangs may interfere in the process. The applicant was a low level player. The gang itself appears not to have been powerful based upon their inability to find his mother’s new phone number. Country information discussed with the applicant suggests that the police are actively working against gangs with some success. Based upon these circumstances I find that the gang will not seek to influence the process or outcome of any judicial proceedings against the applicant.

1. As such I find that the applicant does not face a real risk of significant harm.

2. I now turn my mind to consider whether the applicant faces a real chance of serious harm or a real risk of significant harm from the gang he had worked with if and when he is living in the community. I note that the applicant’s last withdrawal of funds was in mid-July and that he departed for Australia [in] August. This is a period of a month and a half. He said that he was never physically harmed at any stage. He said that he was not harmed after mid-July because he moved away from his home and lived with a relative a few hundred kilometers away. Nevertheless, he continued to use the same phone but blocked their numbers.

3. Based upon the fact that he was never harmed, that the gangs could not find his mother’s new phone number and could not find him for a period of a month and a half suggests to me that he was of very low level of interest to them. The applicant believes that they are after him because the gang wants more money. There are many people gangs can extort and there is no clear reason why they would focus on him. Having been away from Taiwan for over five years I find would further reduce his risk profile because the gangs would have found other people to extort money from and less likely to redirect resources to revisiting efforts to extort money from the applicant. Taking all of the evidence together I find that the applicant does not face a real chance or a real risk of any harm from the gang.

4. 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).

5. 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).

6. 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

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

   Denis Dragovic
   Senior Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation
   …
   cruel or inhuman treatment or punishment means an act or omission by which:

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

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

   but does not include an act or omission:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

   …

   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.

   …