1729602 (Refugee)

[2023] AATA 2499

1729602 (Refugee) [2023] AATA 2499 (22 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1729602

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Holub

DATE:22 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2023 at 8:18am

CATCHWORDS
REFUGEE – protection visa – China – petitioned local government after small offer of compensation for acquisition of house – possessions damaged and applicant and parents beaten and threatened by demolition team – inaction by police – lawful departure on own passport – monitoring and harassment of parents – delay in applying for protection – applied after student visa cancelled and period as unlawful non-citizen – no additional information or evidence provided and consent to decision without hearing – applicant’s responsibility to supply relevant facts – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 8 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

2.    The applicant was born in [year] and according to her application was born in Fuqing City, Fujian Province, China. Department records indicate she departed China legally using her own passport and first arrived in Australia [in] June 2007 travelling on a Student (class TU) (subclass 571) visa granted on 14 June 2007. On 8 August 2008 the applicant was granted a further Student (class TU) (subclass 571) visa that was due to cease on 18 November 2009. The applicant departed on this visa [in] May 2009, and last returned to Australia [in] July 2009. On 18 November 2009 and 9 November 2011, she was granted further Student (class TU) (subclass 571) visas the latter of which was due to cease on 7 February 2013. This visa was subsequently cancelled on 11 November 2011. The applicant remained onshore as an unlawful non-citizen until lodging her Protection visa application on 3 August 2017 and being granted a series of associated Bridging C visas.

Issues

1. The issues in this review are whether there is a real chance that, if she returns to China, the applicant will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act 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 for the purposes of s 36(2)(aa) of the Act.

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

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.

1. 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).

2. 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.

3. 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.

CLAIMS AND EVIDENCE

Protection visa application

Protection claims

1. The Tribunal has before it the Department’s file relating to the application for protection. The applicant applied for the visa on 3 August 2017. In her application the applicant claimed:

   -    she has an old house in her hometown and was notified by the local government that the house would be removed, however their compensation was only one third of the market price so faced with an unfair agreement, her and her parents refused to sign it.

   -    one day the demolition team came and forced them to sign the agreement. The demolishers smashed all goods of the home and threatened them. The applicant and her parents were beaten. She called the police, but the police only left them to wait. They did not receive any results.

   -    she and other residents decided to make a petition and then wrote a complaint letter and submitted it to local government in hopes of getting a reasonable explanation and compensation. However, after the officials knew their behaviour, they were very angry. Her parents worried about her safety and sent her abroad.

   -    later her parents told her that the police often monitor her home and harass them. Because she worried about them, she told them to write a public letter to distribute. However, when the officials knew their behaviour, they began to catch her parents and even worse they forced them to tell them about her whereabouts. She was scared and stayed in Australia.

   -    the situation in the whole of China is the same. The government is corrupt, and they collude with the police. They only care about their own benefits.

   -    she will be persecuted by the police imprisoned and suffer mentally and physically and will die if she returns to China.

The delegate’s decision

1. The applicant did not attend a Protection visa interview scheduled for 8 November 2017 with the Department.

2. The delegate assessed that the written material does not provide a sufficient basis or evidence to be satisfied that the applicant is, in fact, at risk of being harmed if she were to return to the People’s Republic of China or that she faces harm of any kind for such a reason on return to the People’s Republic of China. The delegate stated that at interview the applicant would have been required to substantiate her claims and to satisfy the delegate that her claimed fear of harm in the People’s Republic of China is well-founded. She would have been requested to verify her claims made in her application, provide corroborating details relating to her claimed fear of harm.

3. The delegate found that without having had the opportunity to verify the applicant’s claims and obtain substantiating detail from her, they were unable to be satisfied that her claimed fear of persecution in the People’s Republic of China is well-founded. The delegate was therefore not satisfied that there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) in the receiving country. Therefore, the applicant is not a refugee as defined in section 5H and the criterion in paragraph 36(2)(a) of the Act is not satisfied for this reason.

4. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to People’s Republic of China, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act

Applicant identity and country of reference

1. The applicant claims to be a citizen of China. The applicant provided a copy of her People’s Republic of China passport issued [in] 2007. The delegate accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the relevant application for protection.

2. The Tribunal finds that the applicant is a citizen of China, which is also her receiving country for the purposes of the refugee and complementary protection assessments.

Review application

1. The applicant applied to this Tribunal for a review of the delegate’s decision on 26 November 2017. She provided a copy of the delegate’s decision. Aside from seeking Medicare letters, appointing a representative, and seeking access to documents held on the Tribunal file under the Freedom of Information Act 1982, the applicant has not otherwise engaged with the Tribunal, nor has she provided any additional information or evidence to the Tribunal since she lodged her Protection visa application.

2. The review applicant was invited to appeared before the Tribunal on 18 May 2023 to give evidence and present arguments. The day before the hearing the Tribunal received an email from the applicant’s migration representative. Attached to the email was a completed “Response to hearing invitation” indicating in the “No” box that the applicant would not be participating in the hearing and that she consents to the Tribunal making a decision on the papers without taking further steps to allow her to appear. It was also indicated that the visa applicant would not be participating.

3. On 18 May 2023 a Tribunal officer called the applicant’s registered migration agent and confirmed that the applicant does not wish to attend the hearing and that she wishes the Tribunal to make a decision on the papers. The Tribunal officer explained to the migration representative that there is no guarantee of a favourable decision if the applicant does not appear to provide evidence and present arguments. The migration representative advised the officer that he has explained this to the applicant, and the applicant confirmed she will not be attending, and requested a decision on the papers. He was told that the Tribunal would proceed to cancel the hearing

1. The applicant was represented in relation to her application for review.

CONSIDERATION OF Claims and evidence

Assessing the applicant’s claims

1. The mere fact that an applicant claims to fear harm for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

2. The only information before the Tribunal is the applicant’s own assertion of the facts which are outlined in her written application. The Tribunal is unable to establish from this information that she will be persecuted if she returns to China because she and her parents refused to sign an agreement because the compensation being offered for their old house was only one third of the market price.

3. From the information provided by the applicant, the Tribunal was unable to establish that when the demolition team came and forced them to sign the agreement, they smashed all goods of the home and threatened them or that the applicant and her parents were beaten and that she called the police but did not receive any results.

4. The applicant did not provide sufficient detail regarding her claims that she and other residents decided to make a petition and then wrote a complaint letter and submitted it to local government or that the officials became angry as a result and that her parents worried about her safety and sent her abroad.

5. Furthermore, the applicant did not provide sufficient detail about her claims that her parents told her that the police often monitor her home and harass them and due to her concern for them she told them to write and distribute a public letter, and that the officials knew their behaviour and began to catch her parents and forced them to tell them about her whereabouts. The Tribunal was unable to establish that she was scared and stayed in Australia for that reason.

6. The Tribunal was unable to assess her claim that the authorities would persecute her mentally and physically and possibly kill her if she were to return to China when they appear not to have done so to her parents.

7. Additionally, the Tribunal was unable to question the applicant about her reasons for being unlawful for four and half years in Australia. Had the applicant attended the hearing to which she had been invited, I would have explained to her that this disregard for Australia’s immigration laws is of serious concern to me and provided her with an opportunity to explain her period of unlawfulness and respond to my concern.

8. I note that the applicant provided no timeframes for any of the claimed events and that no submissions were made by her in regard to her claims nor about the period of her being unlawful. The fact of her lengthy time in Australia, the period of unlawfulness and the lack of any further submissions in support of her application raises concerns. However, my overall assessment is that insufficient information was made available by the applicant that the events and circumstances put forward by her in her claims for protection are factual.

9. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. I have regard to previous judicial decisions that a decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, the Tribunal is satisfied it is also materially applicable to the assessment of complementary protection claims.

Findings

1. On the available evidence and without the ability to ask questions of the applicant, even if the Tribunal is prepared to accept that the applicant’s family home was demolished and that the family did not receive the compensation they had hoped for, the Tribunal does not accept that:

   ·     when the demolition team came and forced them to sign the agreement that they smashed all goods of the home and threatened and beat her and her parents, and that she called the police, but the police only left them to wait, and the family did not receive any results.

   ·     she and other residents decided to a petition and wrote a letter of complaint and submitted it to local government nor that the officials knew their behaviour and became very angry and that her parents worried about her safety and sent her abroad for that reason.

   ·     the police often monitored her home and harass her parents and that she advised them to write and distribute a public letter and that the officials knew their behaviour, they began to catch her parents and forced them to tell them about her whereabouts.

   ·     she will be persecuted by the police, imprisoned and suffer mentally and physically and will die if she returns to China or that she will be harmed in any way if she returns to China.

2. In relation to the applicant’s claims regarding corruption in China, I have considered the following country information contained in the Department of Foreign Affairs and Trade Country Information Report People’s Republic of China, of 22 December 2021 which contains the following information:

Corruption

2.20 China ranked 78 out of 180 countries and territories in Transparency International’s 2020 Corruption Perceptions Index (where 1 is perceived to be least corrupt). The 2020 Global Corruption Barometer for Asia found that, while 64 per cent of Chinese citizens considered corruption had decreased in the previous 12 months, 62 per cent still perceived government corruption to be ‘a big problem’.

2.21 Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ such as land-usage rights, mining and infrastructure development. Bribery in healthcare is also reported, for example offering cash for prioritised procedures. See also documentation and fraud and entry and exit procedures.

2.22 What might be considered corruption in the West may be viewed as guanxi in China. Guanxi, (literally ‘connection’) is a system where progress in business or government relies on patronage networks – giving and receiving ‘face’ (mianzi - esteem, prestige) and exchanging favours or gifts. Good guanxi can obtain favourable business, social and legal outcomes, and bad guanxi can make them impossible.

2.23 The government takes corruption seriously as a threat to its legitimacy. Penalties for corruption can include death for serious and high-profile cases. On taking office in 2013, President Xi launched a nation-wide anti-corruption campaign against high and low-ranked corrupt officials. Within five years the crackdown led to arrests of over 1,800 officials, including very senior political figures. Corruption charges can be interpreted broadly. Allegations of corruption by officials are investigated by Party organs in the first instance (the Central Commission for Discipline and Inspection and the National Supervisory Commission). While officials are generally investigated by these organs for alleged crimes related to fraud, financial misappropriation and other activities traditionally defined to constitute corruption, these organs appear also to investigate officials deemed to lack loyalty and ideological purity. Individuals critical of the Party and its leadership can also face detention and other consequences ostensibly for corruption charges”.

1. I accept the existence of corruption in China and note that the government takes corruption seriously. However, the applicant has not provided sufficient information or details for me to specifically link her claims of fearing harm as a result of corruption within China.

2. Considering the totality of the information made available by the applicant and in the light of her decision not to provide oral evidence, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion, either now or in the reasonably foreseeable future, if she returns to China. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China. Therefore, she does not satisfy the criterion at s.36(2)(a) of the Act.

3. The Tribunal has also considered the alternative criteria in s.36(2)(a)(a) of the Act. For the same reasons already articulated, the Tribunal is not satisfied that the available evidence supports that there are substantial grounds for believing that, as are necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she would suffer significant harm in the form of, arbitrary deprivation of life, or the death penalty being carried out, or torture, or cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore, the applicant is not satisfied the requirements s.36(2)(a)(a) of the Act.

4. 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.

Linda Holub
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.

…