1713811 (Refugee)

[2022] AATA 3258

1713811 (Refugee) [2022] AATA 3258 (27 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1713811

COUNTRY OF REFERENCE:                   Philippines

MEMBER:L. Symons

DATE:27 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 27 July 2022 at 10:14am

CATCHWORDS

REFUGEE – protection visa – Philippines – Religion – Pentecostal – fear of persecution – no response to tribunal communication – non-attendance at hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 499

Migration Regulations 1994 (Cth), Schedule 2, r 1.12

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 dependants.

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 1 June 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant, who claims to be a citizen of the Philippines, arrived in Australia [in] December 2013 as the holder of a subclass 189 Skilled (Independent) visa. This visa was cancelled on 1 July 2015. On 9 July 2015, she was granted a Bridging E visa in relation to her application for review. She was granted three further Bridging E visas on 16 July 2015, 24 August 2015 and 17 February 2016. On 16 March 2016, she was granted a Bridging E visa in relation to her application for Protection visas.

3. The second named applicant, who claims to be a citizen of the Philippines, is the mother of the first named applicant. She first arrived in Australia [in]March 2007 as the holder of a subclass 676 Visitor visa. She departed Australia [in] March 2008. She returned to Australia [in] December 2013 as the holder of a subclass 189 Skilled (Independent) dependent visa. This visa was automatically cancelled under s.140(1) of the Act on 1 July 2015 when the first named applicant’s visa was cancelled. On 9 July 2015, she was granted a Bridging E visa in relation to the first named applicant’s application for review. She was granted three further Bridging E visas on 16 July 2015, 24 August 2015 and 17 February 2016. On 16 March 2016, she was granted a Bridging E visa in relation to her application for Protection visas.

4. The third named applicant, who claims to be a citizen of the Philippines, is the husband of the first named applicant. He arrived in Australia [in] September 2014 as the holder of a subclass 189 Skilled (Independent) dependent visa. This visa was automatically cancelled under s.140(1) of the Act on 1 July 2015 when the first named applicant’s visa was cancelled. On 9 July 2015, he was granted a Bridging E visa in relation to the first named applicant’s application for review. He was granted three further Bridging E visas on 16 July 2015, 24 August 2015 and 17 February 2016. On 16 March 2016, he was granted a Bridging E visa in relation to his application for Protection visas.

5. The fourth named applicant, who claims to be a citizen of the Philippines, is the daughter of the first and third named applicants. She arrived in Australia [in] December 2013 as the holder of a subclass 189 Skilled (Independent) dependent visa. This visa was automatically cancelled under s.140(1) of the Act on 1 July 2015 when the first named applicant’s visa was cancelled. On 9 July 2015, she was granted a Bridging E visa in relation to the first named applicant’s application for review. She was granted three further Bridging E visas on 16 July 2015, 24 August 2015 and 17 February 2016. On 31 March 2016, she was granted a Bridging E visa in relation to her application for Protection visas.

6. The fifth named applicant, who claims to be a citizen of the Philippines, is the son of the first and third named applicants. He arrived in Australia [in] December 2013 as the holder of a subclass 189 Skilled (Independent) dependent visa. This visa was automatically cancelled under s.140(1) of the Act on 1 July 2015 when the first named applicant’s visa was cancelled. On 9 July 2015, he was granted a Bridging E visa in relation to the first named applicant’s application for review. He was granted three further Bridging E visas on 16 July 2015, 24 August 2015 and 17 February 2016. On 31 March 2016, he was granted a Bridging E visa in relation to his application for Protection visas.

7. The sixth named applicant, who claims to be a citizen of the Philippines, is the daughter of the first and third named applicants. She was born in Australia on [date]. On 31 March 2016, she was granted a Bridging E visa in relation to her application for Protection visas.

8. On 24 February 2016, the applicants applied for Protection visas to the Department of Immigration (the Department). On 1 June 2017, the delegate refused to grant the visas on the basis that they are not persons in respect of whom Australia has protection obligations. On 28 June 2017, the applicants applied to the Tribunal for a review of that decision.

9. On 6 June 2022, the Tribunal wrote to the applicants and informed them that it had considered the material before it but was unable to make a favourable decision on this information alone. The Tribunal invited them to appear before it on 26 July 2022 at 9.30am to give evidence and present arguments relating to the issues arising in their case. The letter indicated that if they did not appear at the scheduled hearing the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before it or may dismiss their application for review without any further consideration of the application or the information before it. This letter was sent to them by email on 6 June 2022 to the email address they provided the Tribunal. This email was not returned to the Tribunal undelivered. The Tribunal did not receive a Response to Hearing Invitation as requested.

10. On 19 July 2022 and 25 July 2022, the Tribunal sent the applicants reminders of the hearing by SMS to the mobile telephone number they provided the Tribunal. They were provided with a telephone number to contact the Tribunal if they had any questions. None of them contacted the Tribunal to indicate that they had any difficulty participating in a hearing.

11. The applicants did not attend the hearing scheduled on 26 July 2022 commencing at 9.30am. They did not contact the Tribunal to explain their non-attendance or to seek a postponement of the hearing. In these circumstances, the Tribunal will proceed to make a decision on the review. 

12. The issues that arise on review are whether Australia has protection obligations to the applicants under the refugee criteria or under the complementary protection criteria.

    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.

    Member of the same family unit

18. Subsections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent child of the family head.

    Mandatory considerations

19. 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 Immigration, 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.

    CONSIDERATION OF Claims and evidence And findings

20. The first named applicant’s claims in her application for Protection visas filed on 24 February 2016 are summarised as follows:

    ·She was born on [date] at Makati city in the Philippines and is a citizen of the Philippines.

    ·She left the Philippines to immigrate to Australia.

    ·She did not experience any harm in the Philippines because she belonged to the same religion as everyone else in her region. Her new religion, as a Pentecostal Christian, is condemned and looked down upon by her community. She witnessed people being harmed and mistreated because they tried to practise the Pentecostal faith. She fears for her safety and the safety of her family.

    ·She fears that if she returns to the Philippines she will be persecuted, harassed and oppressed because of her new religion. 

    ·She does not have confidence in the authorities in the Philippines when it comes to this matter.

    ·She cannot relocate as she does not have land and relatives anywhere else.

21. The second named applicant’s claims in her application for Protection visas filed on 24 February 2016 are summarised as follows:

    ·She was born in the Philippines and is a citizen of the Philippines.

    ·She left the Philippines to immigrate to Australia.

    ·She did not experience any harm in the Philippines because she belonged to the same religion as everyone else in her region. Her new religion, as a Pentecostal Christian, is condemned by the community.

    ·She fears that if she returns to the Philippines she will be persecuted and harassed because of her new religion. 

    ·She does not have confidence in the authorities in the Philippines when it comes to this matter.

    ·She cannot relocate as she does not have land and relatives anywhere else.

22. The third named applicant’s claims in his application for Protection visas filed on 24 February 2015 are summarised as follows:

    ·He was born on [date] at Makati city in the Philippines and is a citizen of the Philippines.

    ·He left the Philippines to immigrate to Australia.

    ·He did not experience any harm in the Philippines because he belonged to the same religion as everyone else in his region. His new religion, as a Pentecostal Christian, is condemned and looked down upon by his community. He witnessed people who were harmed and mistreated.

    ·He fears that if he returns to the Philippines he will be persecuted and harassed because of his new religion. 

    ·He does not have confidence in the authorities in the Philippines when it comes to this matter.

    ·He cannot relocate as he does not have land and relatives anywhere else.

23. The fourth, fifth and sixth named applicants did not make any claims in their own right. They claimed to be members of the same family unit as the first named applicant.

24. The applicants provided the Department with copies of the bio data pages of the passports of the first, second, third, fourth and fifth named applicants issued by the Republic of the Philippines, the New South Wales Birth Certificate for the sixth named applicant issued on [date] and a letter dated 30 May 2017 from [a] Senior Pastor[of a named] Church. 

25. The first and third named applicants attended an interview with the Department on 17 May 2016. The interview was conducted in the English language at the first named applicant’s request. The third named applicant stated that he did not wish to make any claims in his own right and was a member of the same family unit as the first named applicant. The first named applicant stated that the second named applicant also did not wish to pursue any claims in her own right and was a member of her same family unit. The delegate found that the applicants are not persons in respect of whom Australia has protection obligations.

26. The applicants have not filed any written evidence with the Tribunal. They have not engaged with the Tribunal since filing their application for review on 28 June 2017.

    Receiving country

27. The applicants claim to be citizens of the Philippines and have provided copies of the biodata pages of their passports issued by the Republic of the Philippines to the Department. In the absence of any evidence to the contrary, the Tribunal finds that they are citizens of Philippines. The Tribunal finds that Philippines is their receiving country for the purpose of assessing their claims for protection under the refugee criteria and under the complementary protection criteria.

    Third country protection

28. The Tribunal finds that the applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality.

    Member of the same family unit

29. In the absence of any evidence to the contrary, the Tribunal finds that the second named applicant is the mother of the first named applicant. The Tribunal finds that the third named applicant is the spouse of the first named applicant. The Tribunal finds that the fourth, fifth and sixth named applicants are children of the first and third named applicants. The Tribunal finds that the second, third, fourth, fifth and sixth named applicants are members of the same family unit as the first named applicant.

    Assessment of claims

30. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is for the reason claimed or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. 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 himself/herself in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicant's case for him/her. Nor is the Tribunal required to accept uncritically any and all of 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.)

31. In this case, the first, second and third named applicants’ claims are made in the most general terms and they are unsubstantiated. They have not filed any written evidence with the Tribunal to support their claims. As they did not attend the hearing on 26 July 2022, the Tribunal was unable to obtain further details of their claims and to test their veracity. If they had attended the hearing, the Tribunal would have sought additional information about their practise of Pentecostal Christianity in the Philippines and in Australia and whether they are currently practising any religious faith as they have not provided the Tribunal with any corroborating evidence in this regard.

32. If the applicants had attended the hearing, the Tribunal would have sought clarification for why they now fear harm if they return to the Philippines because they are Pentecostal Christians when the first and second named applicants were previously not harmed for practising their Pentecostal Christian faith in the Philippines. The Tribunal would also have discussed with them relevant country information particularly in the context of the claims that Pentecostal Christianity is condemned and looked down upon by the community and they have witnessed people being harmed and mistreated because of their Pentecostal Christian faith.

33. On the limited evidence before it, the Tribunal is not satisfied that Pentecostal Christianity is condemned and looked down upon in the Philippines and people are persecuted, harassed, oppressed, harmed and mistreated because of their practise of Pentecostal Christianity. It follows that the Tribunal is not satisfied that the first, second and third named applicants will be at risk of persecution because of their Pentecostal Christian faith if they return to the Philippines. The Tribunal is not satisfied that they fear returning to the Philippines for the reasons claimed.

34. On the evidence before it, the Tribunal is not satisfied that there is a real chance of serious harm or a real risk of significant harm to the first, second and third named applicants, for the reasons claimed, if they return to the Philippines now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the first, second and third named applicants under the refugee criterion?

35. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that the first, second and third named applicants have a well-founded fear of persecution for reason of their religion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the Philippines. Therefore, they do not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the first, second and third named applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does Australia have protection obligations to the first, second and third named applicants under the complementary protection criterion?

1. As the Tribunal has found that the first, second and third named applicants do not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether they may nevertheless meet the criterion for the grant of Protection visas pursuant to the complementary protection criterion.

2. On the limited evidence before it and in view of the above findings, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first, second and third named applicants being removed from Australia to the Philippines, there is a real risk that they will suffer significant harm. Therefore, the Tribunal is not satisfied that the first, second and third named applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

   CONCLUSION

3. For the reasons given above, the Tribunal is not satisfied that the first, second and third named applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

4. There is no suggestion that the first, second and third named applicants satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, the first, second and third named applicants do not satisfy the criterion in s.36(2) of the Act.

5. As the first named applicant does not satisfy the criteria in s.36(2)(a) or (aa) of the Act and does not hold a Protection visa, the fourth, fifth and sixth named applicants are unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the fourth, fifth and sixth named applicants do not satisfy the criterion in s.36(2) of the Act.

   DECISION

6. The Tribunal affirms the decision not to grant the applicants Protection visas.

L. Symons

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.

…