1726923 (Refugee)

[2024] AATA 424

1726923 (Refugee) [2024] AATA 424 (2 January 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Xi Wang (MARN: 1278708)

CASE NUMBER:  1726923

COUNTRY OF REFERENCE:                   China

MEMBER:Rodger Shanahan

DATE OF DECISION:  2 January 2024

DATE CORRIGENDUM

SIGNED:28 February 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words ‘first named applicant’ at paragraph 42 should be replaced with ‘second- and third-named applicants’.

Rodger Shanahan
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Sophie Xi Wang (MARN: 1278708)

CASE NUMBER:  1726923

COUNTRY OF REFERENCE:                   China

MEMBER:Rodger Shanahan

DATE:2 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the second- and third-named applicants satisfy s 36(2)(a) of the Migration Act; and

(ii)that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 02 January 2024 at 11:35am

CATCHWORDS
REFUGEE – protection visa – China – religion – Roman Catholic – father fired as party member and mother’s teaching certificate cancelled – church raided and applicant injured and detained without questioning or charge – credibility – delay in applying for protection visa – no mention of religion throughout student visa application process – church attendance in Australia started after student visa refused – no supporting statement from parish priest – members of family unit – partner’s own protection visa application refused – children raised as Roman Catholics in Australia – older child near age 10 and eligibility for citizenship – best interests of child – children meet refugee criteria, and mother as member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (6), 36(2)(a), (b)(i), 65, 424AA
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 9 October 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of China, applied for the visas on 13 October 2015.

3. The applicants appeared before the Tribunal on 10 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

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

6. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

8. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

9. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

10. In accordance with Ministerial Direction No.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.

    CLAIMS AND EVIDENCE

    Protection Visa Application

11. The applicant provided the following responses to questions in her protection visa application:

    a.Why did you leave that country: Because of parents, I was accept and attend lots of catechism class. We believe the Roman catholic is the only real Catholic. Unfortunately my father was fired party member, my mother was cancelled teaching certificate by our religion believe. The mayor of the village also warned us, if we keep go to underground church, I will lose education right. Until 2008, my father earned some from his business, he suggest me leave our home to a freedom country to study and learning more knowledge of Roman Catholic. 2012 I got an injury from a mass by police, and was put in the police station room for 2 days with no food, no talk, no discuss, no question. 2015 I have my second baby, this will not satisfy the one child policy of China;

    b.What do you think will happen to you if you return to China: Life threaten. Will be forced educate about ‘What is the right thing to do without against government’. Will be forced to do abortion.

    c.Did you experience harm in China: I was hide in a empty grave when I was around 12 to avoid government people chase because of religious service. 2012 September I got injury feet in a small mass by the conflict between police.

    d.Did you seek help within the country: No. The religion believe is a personal choice. If there is a trouble or threaten others benefit. Most people include relatives, all they wanna do is try to keep far away from you;

    e.Give details of where you moved or why you were unable to: May 2012 My plan ‘leaving for good’ from Australia back to China. September 2012 I came back Australia with a very risk situation. The police show up in a small mass which I participated in suddenly, I got injury feet on that conflict and stay in the police station for two days.

    f.Do you think you will be harmed if you return: The government denies the legally of Roman Catholic, which is no freedom of religion choice. The party does not tolerate ‘dissenters’. Since 2008 financial bankrupt, the place they live always have some people come to ask money, there was a time my granma at home, they took her necklace from her neck by pulling. 2013, I had a relationship which my father strongly against he think this relationship will add burden and trouble to my life. I chose to follow myself, he cut out relationship with me. My baby was baptised. If return to China he will experience again my life with scared, injury, and no reason to put you in the jail.

    AAT Hearing

12. The applicant was asked where the priest was, or a letter from him as was requested by the Tribunal. The Tribunal was told the letter would be provided however none was forthcoming. She said she thought it would be okay to get a letter from the office. She was told that her adviser advised the Tribunal at her partner’s previous hearing that such a letter would be provided at this Tribunal.

13. She said the [Suburb 1] parish was closed for a couple of weeks so she went to the [Suburb 2] one instead (the baptism one).

14. The applicant claimed that if she returned to China, she said she didn’t know how to answer this question. She was told that she needed to answer it as it formed the basis of her claim, and she said that she would be physically harmed and her life would be at risk from people from the government because of her religious belief. She first had this fear in September 2012. This was her only claim.

15. Their religion was underground and she was attending a mass at a villager’s home in September 2012. She was around [Age] years old. She had been Catholic since Year 3 or 4. Her parents were often away and there were two or three missionaries who came to their island during the summer holidays an they would teach them knowledge. After a few weeks they were baptised.

16. There was no church so they would go to someone’s home, light a candle and say prayers. Not often during school but regularly during holidays. She was baptised in a friend’s house by a priest but there was no record of this, including any photos.

17. When the underground mass was raided, they were detained and told the gathering was illegal. They were kept in one place but she wasn’t arrested. They were told the police would keep a record of this and they were not to do this again. Asked about having to hide in a grave when she was 12, she claimed that they were gathered and some people just scattered. She again said that she wasn’t detained. It was put to her that in her statement she said that she injured her feet and stayed in the police station for a few days. She said it was a long time agi and she may have forgotten.

18. She came to Australia in September 2012. She came to study [Subject] in a college. She completed a diploma. She has not returned to China since being in Australia. Asked when she began practising her faith in Australia, she said around 2014. Asked why she didn’t commence when she first came, she said that she was too busy as she had to survive – she worked seven days a week and had to study.

19. Asked where she began in 2014 she said that she went to the [Suburb 1] church and attended mass there. She didn’t go every Sunday after COVID but did before. After COVID they went to [Suburb 2] sometimes as the priest ([Fr A]) served the Chinese community there – it was not the same as the church. [Fr A] was away at the moment which is why there was no letter. It was put to her that there was more than one priest there, and she said that the other one didn’t do much and just helped [Fr A]. He didn’t know this priest’s name.

20. After COVID she went to mass every fortnight or monthly. There was no evidence of this such as a letter. She had not reached out to the parish priest at [Suburb 2]. Asked if she took communion at mass, she said that she did. Asked where she did first holy communion she said she had done reconciliation in China but there was no evidence. She had also done first communion and confirmation in China but there was no evidence of this.

21. She was not yet married and was asked why, as a Catholic as was her partner, that she didn’t marry given marriage was a sacrament just as communion and reconciliation and the like. She had been with her partner for nine years and not undertaken the sacrament which was the only one that could be proven in Australia. She said that she wished her family could be there to see it one day. It was put to her that the Tribunal was interested in the strength of her faith, given that she said that she would practice it in China if she returned, which made it strange that she wouldn’t undertake her sacrament of marriage here.

22. Asked why she couldn’t practice her faith in China, she said that she didn’t know how to answer this. Asked if the priest was detained when the police raided the house church in 2012, she said that she thought so. It had bene a long time.

23. Asked if she was living with her partner she said that she was. Asked when she applied for protection, she said that it was 2015 or 2016. She was asked why she waited for so long to apply given she said that she had to escape China after the incident in September 2012. She said that she still had a valid visa and wanted to get her residency. She also consulted a migration agent who told her that getting protection wouldn’t be an option for her.

24. She was told about s 424AA and it was put to her that during her Departmental interview she said that the priest at the 2012 incident in China was able to escape. Yet here today she said that she didn’t know what happened to him. She had also been asked why she wasn’t married and she said that she planned to marry and had booked it in but she got sick yet here today she claimed that she wanted her parents to come. She was also told that she worked with Client Services about her immigration status in 2015 and there was a whole range of questions they asked her, yet during that time she never mentioned any issues to do with her religion in China. She said that she couldn’t return to China because she couldn’t get a certificate to have a baby – there was no mention of religion.

25. She appeared to have given different stories to different people regarding the same sisues and this could go to issues of her credibility. She said that she had no excuses and it had been a long time. She was told about s 5(J)(6) and it was put to her that there was a concern about her attendance at Catholic mass. There did not appear to be a record of any attendance at mass until after her student visa was refused, affirmed at court and then the Minister chose not to intervene. Her church attendance appeared to be coincidental with her protection visa application.

26. The timing was suspicious and she had not provided any letter from her priest attesting to her attendance and participation within the parish. She had no evidence of her sacraments in China and had not been married in Australia. It was acknowledged that her child had gone to Catholic school and had some of the sacraments however this was done under the applicant’s direction, therefore it was questionable whether she would fell the need to practice the Catholic faith in China if she returned.

27. She said that it was impossible to get any evidence about her sacraments as it was long ago and there was no official priest doing them. She was truly Catholic from Year 3 or 4. She was asked why she couldn’t practice her faith on return to China and she said that all the churches were government churches which were different to the authentic Catholic church. The government demolished the church they had attended and this happened several times. It was put to her that the Pope had said that people who attended Patriotic churches were still considered Catholic. She said that she believed that this was a political calculation – it was put to her that regardless, the Pope had approved it. She said that people had different opinions about religion.

28. She was told that she would be given additional time to provide relevant letters from her parish priest.

    CONSIDERATION OF CLAIMS AND EVIDENCE

29. The first-named applicant is a [Age] year-old woman and the second- and third-named applicants are her [Age]- and [Age]-year old children. The person she claimed was her partner has a separate protection visa application and hence he does not feature on this application. The first-named applicant claimed that if she returned to China she would be at risk of serious harm from the government because of her religious beliefs. 

30. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant. 

31. Overall I found the applicant’s evidence regarding her claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that she fabricated her claims in order to be granted a protection visa.

    Catholic Identity

32. I do not accept that the first-named applicant is genuinely Catholic. It can be difficult to ascertain what a person is thinking regarding their religious identity, and I note that the applicant has submitted a number of references from people regarding her faith practice, as well as certificates regarding her children’s attendance at Catholic sacraments. She has also provided copies of what she claims is her baptism certificate from China – given country information[1] indicating that document fraud is on a scale unmatched in the world and that the document(s) have no security features I can give the Chinese documents no weight.

    [1]DFAT Country Information Report – China, 22 December 2021, p 42.

33. There are however, issues to do with inconsistencies regarding her claim and concerns over the timing of her religious claim that make me disbelieve that she is, or was genuinely of the Catholic faith.

34. The most significant issue is, I believe, the lateness of her claim. She arrived in Australia on a student visa in 2012, a new student visa was refused, the decision was affirmed by the Federal Court and the Minister chose not to intervene. During this time she worked with Client Services about her return to China. She claimed at this time (2015) that she was unable to return to China because she couldn’t get a certificate to have a baby. There was no mention of the alleged harm she experienced in China due to her religious practice. It was only after her student visa pathway was blocked that she then claimed to fear harm due to her Catholic faith.

35. That having been said, the applicant’s children have been raised in the Catholic faith in Australia and received their sacraments and are to all intents and purposes Catholic, even if their mother may not genuinely be one. They are too young to know the difference and consideration must therefore be given to how they will, or will be allowed to practice their faith. The applicant has claimed to be loyal to the Pope and not the Chinese Catholic Patriotic Association (CCPA) and, even if I do not accept the applicant’s claim, given the children have been brought up as Catholics in Australia and received their sacraments here, they too would by default if for no other reason be considered Papists. 

36. Because of this, I am satisfied that in order to continue to follow their faith in China they would likely have to practice it in the underground church that is loyal to the Vatican. Country information indicates that some individuals doing this may have to do this discreetly whilst others may face severe restrictions.[2] 

    Other Issues

    [2] DFAT Country Information Report – China, 22 December 2021, p 18.

1. I am also keenly aware that the second-named applicant, given the efforts of the first-named applicant to prolong her stay in Australia, as well as the inordinately long amount of time it has taken to resolve this case, will turn ten years old in [Month] this year. Should the first-named applicant choose to appeal an adverse decision made by the Tribunal he would well and truly be ten years old by the time the case was heard. The child, having been born in Australia and lived here continuously for ten years would be eligible for Australian citizenship.

2. It therefore makes no sense that the first- and third-named applicants should be denied the right to remain in Australia and yet the second-named applicant be allowed to stay simply because he had been able to remain in the country for a decade. It is important to take into account the best interests of the child in determining a just outcome.  

3. I do not accept that there is a real chance that the first-named applicant will suffer serious harm on return to China based on a Catholic religious identity. However, given the cumulative impact on the second- and third-named applicants of having been brought up as Catholics in Australia with a loyalty to the Vatican and the potential restrictions that will be imposed on them on return to China in order to practice this faith, I am satisfied that there is a real chance that the second- and third-named applicants will suffer serious harm on return to China for religious reasons.

4. I also note that the second-named applicant will shortly become an Australian citizen and cannot be forced to return to China, and it would not be in his best interests to be separated from his mother simply because her claim was not accepted. 

   CONCLUDING PARAGRAPHS

5. For the reasons given above the Tribunal is satisfied that the second- and third-named applicants are people in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

6. The Tribunal is not satisfied that the other applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the mother is a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the other applicant will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

7. The Tribunal remits the matter for reconsideration with the following directions:

   (i) that the second- and third-named applicants satisfy s 36(2)(a) of the Migration Act; and

   (ii)       that the other applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second- and third-named applicants.

   Rodger Shanahan
   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.

   …