1707655 (Refugee)

[2022] AATA 2446

1707655 (Refugee) [2022] AATA 2446 (7 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707655

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Paul Windsor

DATE:7 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 7 June 2022 at 13:33 pm

CATCHWORDS

REFUGEE – Protection visa – Thailand – Muslim religion – insurgency in southern provinces – no safety for Muslims – lack of state protection – religious tolerance in Thailand – ability to relocate to Bangkok – non-attendance at hearing – unlawful status – delay in protection application – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 441A(5), 426A, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

MIEA v Guo (1997) 191 CLR 559

Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 10 March 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Thailand, applied for the visa on 9 September 2015.

3. In his protection visa application the applicant indicated he was born on [date] in Narathiwat, Thailand.  He stated that he is ethnic Thai and a Muslim.  He indicated he has never married or been in a de facto relationship.  He stated he departed Thailand legally [in] December 2012 and arrived in Australia [in] December 2012, entering on a Visitor visa.[1]

   [1] See the Departmental file.

4. In his application, the applicant indicated he sought protection in Australia because he is from an area of Thailand where insurgency groups are committing acts of violence which the government cannot control.  He indicated the situation is becoming increasingly alarming and dangerous so he decided to flee to Australia to seek refuge.[2]

   [2] See the Departmental file.

5. The delegate refused to grant the visa finding that the applicant’s claims are vague, brief and lacking in detail without any supporting evidence; and that country information, while indicating there has been an insurgency in southern provinces since January 2004, indicates that religious freedom in the majority of the country is generally respected, religious organisations operate freely, and there is no systematic or institutional discrimination based on religion.  The delegate also noted that the applicant did not seek protection until 9 September 2015 after he had been an unlawful non-citizen in Australia for over two years.

6. The applicant applied to the Tribunal for review of this decision on 7 April 2017.  He provided the Tribunal with a copy of the delegate’s decision record.

   Failure to attend the scheduled hearing

7. On 20 May 2022 the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone.  The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 8:30 am on 7 June 2022. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.

8. The letter advised the applicant that if he was not able to appear as scheduled, he should advise the Tribunal as soon as possible.  He was advised to note that the Tribunal will only make changes to the hearing arrangements if satisfied that it is reasonable and there are good reasons for doing so, and he must assume that the hearing will go ahead as scheduled unless he has been advised otherwise. 

9. The applicant was also advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

10. The applicant was sent SMS reminder messages regarding the hearing on 31 May and 6 June 2022 to his mobile phone [number].

11. The applicant did not attend the scheduled hearing.  He did not contact the Tribunal to explain his non-attendance.

12. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5) of the Act; the invitation, which was sent by email to the email address provided by the applicant in his review application, was not returned to sender; and SMS reminders about the hearing were sent to the mobile phone number provided by the applicant on two separate occasions.  The applicant did not respond to the invitation to attend the hearing and has not contacted the Tribunal to explain why he did not attend the scheduled hearing.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CRITERIA FOR A PROTECTION VISA

13. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

14. 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.

15. 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).

16. 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.

17. 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

18. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Claims

19. The applicant’s claims for protection were set out in his protection visa application.[3]  His claims are summarised as follows:

    ·Although Thailand is mainly a Buddhist country, many in the region are Muslim.  In Pattani, Yala, Songkhla and Narathiwat there are insurgency groups which have committed acts of violence such as killing policemen, burning tyres on roads and setting schools on fire.

    ·The Prime Minister started losing control of the situation and the United Nations has not yet passed a resolution or determined any policies on this issue.

    ·The issue is becoming increasingly alarming and dangerous for everyone in the area, including his area (Narathiwat).  When he was praying in the mosque the mosque was bombed.  Many have died and are unsafe so he decided to seek government security and refuge in Australia.

    ·He sought help from people of the same religion but they face the same problem and there is not much that can help.  The government cannot protect him because they are Buddhist and are not responsible to the Muslim people because this is a racist issue.

    ·He can’t move anywhere because the majority of people in Thailand hate Muslims and it is not safe for Muslims like him.

    [3] See the Departmental file.

    Findings and reasons

    Identity

20. On the basis of the copy of his passport submitted to the Department,[4] the Tribunal accepts that the applicant is a citizen of Thailand and that his identity is as claimed.  The Tribunal accepts that Thailand is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [4] See the Departmental file.

21. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Thailand, there is a real risk he will suffer significant harm.

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

    Assessment of claims

23. 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 them.  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.  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, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

24. The Tribunal accepts the applicant is a Muslim who was born and grew up in Narathiwat, one of the southern border provinces of Thailand.  In his application he stated he is of Thai ethnicity.  The Tribunal accepts this is the case.

25. In its current Country Information Report, [5] DFAT indicates that, while the Buddhist population in Thailand is estimated as ranging from 85 to 95 per cent of the total population, Islam is the dominant religion in Thailand’s southernmost provinces (Narathiwat, Pattani and Yala). DFAT comments that, while most of Thailand is generally peaceful, a long-running separatist insurgency in southern Thailand has caused numerous deaths and injuries.

    [5] DFAT Country Information Report, Thailand, 10 July 2020, sections 2.53, 3.1-3.4 and 3.15-3.19.

26. DFAT states that Section 27 of the Constitution prohibits unjust discrimination on the grounds of differences in race. Section 70 commits the State to promoting and providing protection for different ethnic groups to have the right to live in the society according to their traditional culture, custom and ways of life on a voluntary basis, peacefully and without interference, insofar as doing so is not contrary to public order or good morals, or does not endanger the security of the State, health, or sanitation.

27. Thailand has traditionally emphasised Thai ethnic identity as a key element of nationhood, and followed policies of assimilation in relation to its ethnic minorities.  For example, although many Thais trace their ancestry to Chinese migrants from the late 19^th and early 20^th centuries, from the 1920s to the 1950s Chinese were required to take Thai surnames in order to obtain citizenship. NGOs have claimed that local authorities in some areas have failed to register the births in Thailand of children of mostly minority ethnic origin due to a reluctance to grant nationality through birth registration to ‘non-Thais’. 

28. DFAT states that Muslim identity is one of a range of factors in the conflict in the southern border provinces. However, the conflict is drawn more along ethnic than religious lines, and there is little tension between Buddhists and Muslims outside the southern border provinces. Human rights observers have reported signs of growing polarisation from both sides, however, particularly among younger generations. Human rights observers report that Buddhist groups in the southern border provinces have become increasingly assertive, including through making calls for Buddhist-only communal facilities. There have also been a number of reported cases of Buddhist teachers walking out of schools in protest at Muslim girls attending in hijab (Islamic dress). While neither side of the conflict has considered religious leaders legitimate targets, a spate of reprisal killings occurred in late 2018 and early 2019 in which a number of Buddhist monks and Muslim imams were targeted. DFAT understands that this was an unusual occurrence and not representative of a broader ongoing trend.

29. DFAT states it is not aware of any cases in which non-Malay Muslims residing outside of the southern border provinces have experienced significant societal or official discrimination on the basis of their religion.  While noting the traditional emphasis on Thai ethnic identity inevitably favours the ethnic Thai majority, DFAT assesses that ethnic minorities with Thai citizenship face a low risk of official and societal discrimination.  While also noting ethnic, religious, and political issues frequently overlap in relation to the insurgency in the southern border provinces, DFAT assesses that in most cases religion is a contributing factor rather than the primary factor.

30. While the Tribunal accepts that the applicant is a Muslim from Narathiwat, one of the southern border provinces affected by the separatist insurgency, the Tribunal notes that the applicant indicated in his application that he attended [University] from [year range], where he completed a Diploma level qualification.  This university is located in Bangkok, approximately 1,150 km north of Narathiwat.

31. DFAT indicates that Section 38 of the Constitution provides for freedom of internal movement, but allows for the restriction of this right by law in cases of national security, public order, public welfare, town or country planning, maintaining family status or for welfare of a minor. Thai citizens from all backgrounds can and do relocate internally for a variety of reasons. In particular, large numbers of Thais have relocated from rural areas to major cities in recent decades in search of employment opportunities.[6]

    [6] DFAT Country Information Report, Thailand, 10 July 2020, section 5.24.

32. The available evidence indicates that the applicant was able to move to Bangkok.  He has not provided any evidence to indicate or suggest that he experienced any difficulties while he was living in Bangkok.

33. Considering the applicant’s individual circumstances and the relevant country information, the Tribunal finds that the applicant could return to Thailand and again live in Bangkok, where he would not face a real chance of suffering persecution due to his Muslim religion or for any other reason (such as an imputed political profile of opposition to, or support for, separatist insurgents active in the southern border provinces), or face a real risk of significant harm.  In this regard, the Tribunal notes DFAT’s advice that it is not aware of any cases in which non-Malay Muslims residing outside of the southern border provinces have experienced significant societal or official discrimination on the basis of their religion, and DFAT’s assessment that ethnic minorities with Thai citizenship face a low risk of official and societal discrimination.

34. The Tribunal has also given weight to the fact that the applicant did not apply for protection in Australia until 9 September 2015, more than two years and eight months after he arrived in Australia [in] December 2012, and more than two years and five months after he became an unlawful non-citizen when his visitor visa ceased on 20 March 2013.  The Tribunal considers that if the applicant genuinely fled Thailand in fear of his safety he would have found out about protection visas and made a protection visa application in Australia much sooner after arrival than he did.

    Does the applicant have a well-founded fear of persecution if he returned to Thailand?

35. Having considered the applicant’s claims, for the reasons given above, the Tribunal does not accept that there is a real chance that he will suffer persecution involving serious harm from separatist insurgents, Buddhists, the Thai authorities, including security personnel, or any other organisation, agency, group or individual, due to his Muslim religion or imputed political opinion either for or against the separatist insurgency in the southern border provinces, or for one or more of the other reasons mentioned at s.5J(1)(a), if he was to return to Thailand, now or in the foreseeable future.

36. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

    Complementary protection

37. 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).

38. In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Thailand, the Tribunal has noted that 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 relation to the ‘refugee’ criterion.[7]

    [7] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

39. Considering the applicant’s circumstances and the relevant country information, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Thailand, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from separatist insurgents, Buddhists, the Thai authorities, including security personnel, or any other authority, organisation, person or group.

1. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. In reaching the above conclusion, the Tribunal finds that it is reasonable, in the sense of practicable, for the applicant to relocate to an area of Thailand outside the three southern border provinces which are affected by the separatist insurgency, as he has indicated he did from 2005 until 2010, when he undertook tertiary study at a university in Bangkok.  The Tribunal notes that Bangkok is readily accessible to the applicant without the requirement for him to return to his home province of Narathiwat.

   Member of the same family unit

3. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).

   DECISION

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

   Paul Windsor
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

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

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

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

   but does not include an act or omission:

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

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

   …

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

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

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

   …

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

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

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

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

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

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

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

   …

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

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

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

   …

   5H    Meaning of refugee

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

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

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

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

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

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

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

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

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

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

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

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

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

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

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

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

   (b)     significant physical harassment of the person;

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

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

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

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

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

   5K    Membership of a particular social group consisting of family

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

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

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

   (i)the first person has ever experienced; or

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

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

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

   5L    Membership of a particular social group other than family

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

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

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

   (c)     any of the following apply:

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

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

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

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

   5LA Effective protection measures

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

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

   (i)the relevant State; or

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

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

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

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

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

   …

   36     Protection visas – criteria provided for by this Act

   …

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

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

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

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

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

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

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

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

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

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …