1726273 (Refugee)

[2023] AATA 4748

1726273 (Refugee) [2023] AATA 4748 (19 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1726273

COUNTRY OF REFERENCE:                   China

MEMBER:Angela Cranston

DATE:19 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2023 at 11:27am

CATCHWORDS
REFUGEE – protection visa – China – sexually harassed or assaulted and threatened by village head – credibility – delay in applying for protection – period as unlawful non-citizen – inconsistent claims and evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), Schedule 2

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 11 October 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 China, applied for the visa on 27 January 2017.

3.    In her protection visa application, the applicant stated that she lived at [Address] Fuqing City, Fujian Province. She also claimed the following:

My name is [the applicant], born on [Date], in [Fuqing] City, Fujian Province, China. Ever since my husband passed away in 2008,1 have been sexually harassed by the village head. Due to such, I was forced to escape the country and travel overseas to seek a new place to live.
I married my husband in 1987, and afterwards gave birth to one son and one daughter. We lived a very fulfilling life until my husband passed away in 2008. When my husband left, it was extremely difficult trying to support my family financially and raise my two children, I also played the role of looking after my elderly parents. Although speaking truthfully, the mental burden was so much worse than just the physical aspects.

In the second half of the year 2013, the village head often visited me while my children were away for school. At first, he usually stayed for tea while having light conversations with me. I did not think too much of it as I thought it might just be a coincidence, not to mention that I did not wish to give the village head a negative impression which would only cause me trouble. However, after a few visits, he became more aware of the fact that I was a widow and became more caring and affectionate towards me even though I have never uttered a word of hardship.
One day during March, 2014,1 was once again home alone. My son was already married and lived with his own family, while my daughter was attending school during the day. The village head brought alcohol to my place and ask whether I would like to drink with him. I was not such a fan of alcohol and so I kindly refused. This resulted in him drinking alone in my home while chatting about various things with me. After a while it seemed that he became slightly drunk as his face slowly turned red, then all of a sudden, he stood and hugged me tightly without any warning. My natural instinct made me flinch at the contact but yet he still tried to close the distance. I ran from home that instant and stayed at my parents’ place that night out of panic.
Everyone in the village kept things in a very traditional manner, hence I feared if rumours spread about the incident, I would be seen as quite indecent even if I was the victim.  I could therefore only remain silent and pray that the same thing would not happen again.
Without a man in the household, I guess it would be very easy to become a target of other men in the village, and even though my son was of age, to me he still seemed too young to be told of the truth about many things. A few days later, the village head came to visit my home again as I have returned home the second day after the incident. This time, he arrived drunk, and seeing how his first attempt ended in failure, I was mindful that he might try again. But he was making quite a ruckus in front of my home, knocking and banging on my door loudly. I was afraid it might cause any inconvenience for the neighbours while also giving myself a bad name, so I let him inside in the end.
This time I thought I would be more prepared and could try to refuse him once and for all after he came in, but he had more strength than I could handle and immediately pushed me all the way onto my bed. Many times after, he tried to force me into performing sexual acts with him, and as he held the authority to silence even the police over his actions, I was helpless against his assaults. I lived in fear that he might appear at my doorsteps unexpectedly and make me suffer through his greedy needs, but I also
feared more of the way people would think of me if they realised what was
going on.
It became easy for my best friends to tell the signs of change in me as each day, I found it more difficult to hide the truth after each ongoing assault. And under their constant questioning, I told them that I was being harassed by the village head, although I did not speak of the sexual assaults.
They then suggested me to escape my home town as we all knew there was nothing else that I could do to punish the village head for his indecent acts.
However hard it might have been for me to leave my home, I made the final decision to come to Australia to put an end to my suffering in China.
At first, I hoped that I could work here and send some money back to provide for my children, but I was too afraid to return back to China whenever I thought of the pain that I experienced. Until recently, I realised through a friend about the protection visa category that exists within Australia, so I immediately knew I had to apply for such a visa so I could have hope that I do not need to live in fear of anything anymore.

4.    The delegate refused to grant the visa and the applicant applied for review.

5.    The applicant appeared before the Tribunal on 27 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6.    The applicant stated she needed protection because officials from her village came to her place looking for trouble.

7.    The applicant stated she came to Australia [in] January 2015 on a tourist visa that allowed a 40-day stay. After that she had no visa and applied for a protection visa in 2017. She stated her answers in her protection visa form were correct, but her statement left out details because she was too afraid to go into those with her lawyer.

8.    The applicant stated her last address in China was [Address] Fuqing City, Fujian Province where she lived with her mother-in-law who was [Age] and sick but her children did not live there and were away studying. When asked where they were, she stated her daughter was at boarding school in the town and returned on weekends and her son lived with his wife’s family.  She confirmed that since her husband passed away in 2008 she only lived in the house with her mother-in-law.

9.    The applicant stated she came to Australia because she wanted to escape and that since her husband passed away, her life had been difficult, and became harder when the chief officer (village head) started coming to her place at the end of 2013 and harassed her and chose times when her children were not at home. She stated he came with alcohol and returned in March 2014. When again asked why she came to Australia, she stated she came because he told her if someone else knew about the things that happened between them including the police, he would kill her.  The applicant then became upset and the Tribunal paused proceedings.

1. When asked why the applicant had not applied for a protection visa earlier if she allegedly came to Australia because she was escaping, she stated she did not know the law, did not know anyone in Australia and did not know how to apply. When asked if she thought to ask, she stated she didn’t know English and people around her did not know. She also stated she was sick when she arrived and lost a lot of weight. When asked what made her think she could remain in Australia after her tourist visa ceased, she said she was terrified of returning to China. The Tribunal put to her she faced returning because she as unlawful, and she stated she didn’t think. 

2. The Tribunal put to the applicant that she had said the village head threatened to kill her which was not in her statement. She said she was too ashamed to tell her lawyer that. The Tribunal put to her that she had told her lawyer the village head had tried to force her to perform sexual acts. She stated she told him a brief story and did not want to talk about it in detail. The Tribunal put to her that the details she had revealed to her lawyer seemed more difficult than telling him the village head had threatened to kill her.  She stated before she was too afraid but since she was in Australia, she could say everything. She repeated that she didn’t tell her lawyer; she just told him a brief story and did not go into details but now she had the courage to do so.    

3. When asked why she thought the village head had targeted her, she said, she did not know, he was sex driven, an alcoholic and also agreed that earlier she said that maybe her Christianity was part of the reason. When it was put to her that was not in her statement, she stated she had only told a brief story.

4. When asked why she could not return to China, she stated she was terrified of the village head and thought he would kill her. When asked why her only option was to come to Australia, she stated she had no other option, her brother was in Australia and asked him to invite her to come. She stated the police were no option because they were in the same group as the government.

5. When asked if there were any other reasons why she could not return, she said no.  

6. The Tribunal put to the applicant that she had said in 2013 the only other person living in the house was her mother-in-law. She agreed. The Tribunal put to her that in her statement she had not mentioned her mother-in-law but said in March 2014 her son was already married and lived with his own family whereas her daughter attended school during the day. The Tribunal put to her that seemed to suggest her daughter was living there. She stated her daughter returned on Saturday and Sundays. The Tribunal put to her that her tourist visa application said that her son, daughter, and mother-in-law were all living at her house in 2014. She stated they all lived together and her daughter only returned on weekends. The Tribunal again put to her that she said her son, daughter and mother-in-law all lived there.  She said that was correct. The Tribunal put to her she had just said her son was not living there and had his own family and her statement did not mention her mother-in-law. She stated she didn’t include all details. The Tribunal put to her it may find it difficult to accept that the village head repeatedly turned up at a house full of people and behaved in the way she alleged.  She stated he came when her son and daughter were not at home and her mother-in-law was sick. 

7. The applicant again confirmed there were no other reasons why she could not return to China and said she was worried the village head would kill her. 

8. Following the hearing, the Tribunal wrote to the applicant as follows:

Your family composition dated 12 December 2014 lodged with your tourist visa
application indicates that you, your mother-in-law, son and daughter lived at [Address]
Fuqing City, Fujian Province. This information is relevant to the review because it may be inconsistent with your written statement that does not mention your mother-in-law and says in 2014 your son was already married and lived with his own family and does not suggest you were in a house without “a man in the household” as claimed or that the alleged repeated incidents with the village head could have transpired as claimed. It may also be inconsistent with your initial evidence at hearing which was that you lived with your mother-in-law but that your two children did not live there, that is your daughter was at boarding school but came back during weekends and your son had to live with his wife’s family.

1. The applicant responded as follows:

Back then in December 2014, my mother-in-law was sick and she had to stay in bed all day. After my husband passed away, I took the responsibility to take care of my mother-in-law.

While I said my son was away from my home, I meant my son didn’t live at the address permanently. There’s a tradition in my hometown that, even a man was married and lived in his wife’s home, we still keep the man’s home address as his residential address.

As a matter of fact, my son came back home almost every one or two weeks on the weekends, that explained why I kept the same residential address with my son.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in China and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there is a real risk that she will suffer significant harm.

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

3. In her protection visa application, the applicant stated that during March 2014 she was home alone since her son was married and lived with his own family and her daughter attended school during the day and that without a man in the household, she guessed she was an easy target for village men, that the village head repeatedly came and tried to force her into performing sexual acts and she was helpless against his assaults. She also stated others suggested she escape her home town as they knew she could do nothing to punish the village head from his indecent acts and she came to Australia to end her suffering in China.

4. However, at hearing, the applicant stated she lived with her mother-in-law and her children did not live there as they were away studying, with her daughter at boarding school and home on weekends and her son living with his wife’s family. She also stated that she came to Australia because the village head told her if someone else knew about the things that happened between them including the police, he would kill her. 

5. The applicant’s overall evidence lacks consistency and credibility. Firstly, the applicant’s family composition dated 12 December 2014 and as lodged with her tourist visa application indicates that she, her mother-in-law, son and daughter lived at [Address] Fuqing City, Fujian Province and is inconsistent with her protection visa statement that does not mention her mother-in-law and says in 2014 she was alone because her daughter attended school during the day and her son was already married and living with his own family. It is also inconsistent with the applicant’s initial evidence at hearing which was that she lived with her mother-in-law but that her two children did not live there, that is her daughter was at boarding school but returned on weekends and her son had to live with his wife’s family. After hearing, she stated that her mother in law was there, and that her son did not live at the address permanently but that when a man married and lived in his wife’s home, there was a tradition that they kept the man’s home address as his residential address and that as he came home almost every one or two weeks on weekends, that explained why she kept the same residential address with her son.  

6. The Tribunal finds that the applicant’s evidence in relation to who she allegedly lived with has continued to change with each telling. While the Tribunal has considered the applicant’s various explanations for the inconsistencies, including the claim that when a man married and lived in his wife’s home, traditionally they kept the man’s home address as his residential address and that as her son came home almost every one or two weeks on weekends, that explained why she kept the same residential address with her son, however the Tribunal considers these to be poor attempts to paper over her inconsistencies as to who she was allegedly living with.  

7. The Tribunal finds that because the applicant’s family composition as identified in her tourist visa application was the applicant’s earliest evidence in relation to who she was living with in 2014 and was freely given, then it prefers that evidence to her subsequent evidence about who she was allegedly living with in 2014. The Tribunal also finds that evidence does not suggest the applicant was in a house without “a man in the household” as claimed nor does it support the applicant’s statement that without a man in the household, it was easy for her to become a target of other men in the village. While the Tribunal has still considered whether the alleged events occurred, the applicant stated at hearing she came to Australia because the village head told her that if someone else knew about things that happened between them including the police, then he would kill her, threats that she failed to mention in her protection visa statement. When this was put to the applicant at hearing, she stated she had not told her lawyer everything as she was too ashamed to tell him, however she failed to provide a credible explanation as to how it was she was able to tell her lawyer that the village head tried to force her to perform sexual acts but was then unable to state he threatened to kill her, even though on one version of her telling, that was the very reason she came to Australia. 

1. In reaching these conclusions, the Tribunal has also considered that despite her allegation that she came to Australia because she wanted to escape, the applicant remained in Australia for some 2 years before applying for a protection visa. When this was put to her at hearing, she stated that she did not know the law, did not know anyone in Australia and did not know how to apply and that she did not know English and people around her did not know. She also said she was sick however she was then unable to explain how it was she thought she could remain in Australia after her tourist visa ceased.

2. The Tribunal finds that the applicant exhibited a strong desire to remain in Australia before she applied for a protection visa. While this within itself does not necessarily indicate that what the applicant has alleged is not true, the applicant’s strong desire to remain in Australia as evidenced by her long-term unlawful stay before she applied for a protection visa combined with the applicant’s overall telling of the alleged events in China leads the Tribunal to find that she is not talking about events that have happened but is making up her claims.

3. In sum, the Tribunal does not accept the applicant has been sexually harassed by the village head nor that he threatened that he would kill her. Neither does the Tribunal accept that she fled China. Given this, the Tribunal is not satisfied that there is a real chance that the applicant will be pursued or harmed if she returns to China now or in the reasonably foreseeable future.

4. The applicant raised no other claims as to why she cannot return to China.

5. 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 the Refugees definition. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

6. 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 has rejected all the applicant’s claims.  The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future.

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

8. 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

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

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…