1730248 (Refugee)

[2024] AATA 2285

1730248 (Refugee) [2024] AATA 2285 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1730248

COUNTRY OF REFERENCE:                   China

MEMBER:David McCulloch

DATE:26 March 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2024 at 3:22pm

CATCHWORDS

REFUGEE – protection visa – China – religion – Yi Guandao – confiscation of property – home temple monitored – fear of detention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 46, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (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 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 6 November 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 31 July 2017. The applicant was invited to attend an interview with a delegate of the Department on 6 November 2017. The applicant did not attend the scheduled interview or provide a reason for his non-attendance. The delegate refused to grant the visa.

3. The applicant was invited to attend the hearing of the Tribunal to be held on 21 March 2024 at 9:30am. The applicant did not attend the hearing or provide a reason for non-attendance. The Tribunal notes the two SMS reminders of the hearing were sent to the applicant at his mobile number provided one day and five days, respectively, before the scheduled hearing.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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–5LA, which are extracted in the attachment to this decision.

8. 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

9. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – China, 22 December 2021.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether, on the evidence provided, the Tribunal can be satisfied of claims made. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant’s migration history is extracted from the delegate’s Decision Record (not corrected for spelling):

Date	Event details
13/11/2007	Temporary Student Guardian offshore visa application lodged for applicant as visaed student and his associated family members
03/03/2008	Applicant granted a multiple entry Schools Sector offshore visa (Subclass TU-571) in effect until 06/08/2008
[March] 2008	Applicant arrived in Australia
05/08/2008	Temporary Student Guardian offshore visa refused
06/08/2008	Applicant granted a multiple entry Schools Sector Offshore visa (Subclass TU-571) in effect until 15/3/2011
21/04/2009	School Sector PTW (TU-571) visa cancellation considered – intervention strategies implemented
03/06/2009	Schools Sector Work Permission (TU 571) visa cancelled – s116 General power
03/09/2009	Migration Review Tribunal - Schools Sector Work Permission (TU 571) visa cancelled – decision set aside
23/06/2009	Applicant presented to department as non-compliant student
23/06/2009	Applicant granted a Bridging visa E (subclass WE-050)
22/02/2011	Schools Sector Further Stay(Web) (Subclass TU-571) Noncompliance notice finalised – visa not cancelled
22/02/2011	Applicant granted a Bridging via A (Subclass WA-010)
24/03/2011	Schools Sector Work Permission (TU 571) visa granted – Noncompliance notice finalised- visa not cancelled in effect until 15/03/2012
19/11/2011	Schools Sector Further Stay(Web) (Subclass TU-571) Noncompliance notice finalised – visa not cancelled
14/02/2012	Applicant granted a Bridging via A (Subclass WA-010)
12/07/2012	Higher School Education Sector visa (Subclass TU-572) granted onshore in effect until 06/01/2014 – applicant ceased study 01/11/2012
06/01/2014	Higher School Education Sector visa (Subclass TU-572) Visa cancelled – s116: General Power
06/01/2014	Applicant becomes unlawful non-citizen in the community
21/06/2017	Applicant lodged application for Protection visa (Subclass XA-866)
Applicant granted a Bridging via C (Subclass WC-030) in association with application for Protection visa
10/07/2017	Protection visa found to be invalid- s46(2A) requirement not complied with
31/07/2017	Applicant lodged application for Protection visa (Subclass XA-866)
07/09/2017	Applicant granted a Bridging via C (Subclass WC-030) in association with application for Protection visa

1. The following information is apparent from the protection visa application form. The applicant was born on [date] in Fuqing City, Fujian Province, China. He is of Han Chinese ethnicity, whose religion is Taoism. The applicant speaks, reads and writes Mandarin. The applicant has never married. The applicant’s father and mother reside in Fujian Province, and he is in contact with them via phone. From [birth] to March 2008, the applicant resided in Gangtou Town. The applicant completed primary school and [grade] in China from [year] to June 2007. The applicant withdrew from [studies] in China in 2008. The applicant attended and failed college from 2008 to 2012 in Sydney, Australia. From 2008 to present, the applicant has resided in Australia. The applicant was unemployed whilst he was residing in China. From 2008 to 2017 the applicant was employed as a casual doing [occupation 1]. At the time of application, the applicant was unemployed.

2. The applicant provided the following translated statement, setting out his claims for protection (not corrected for spelling or grammar):

   I came to Australia in 2008 as a student but my schooling carrier isn’t successful due to my family’s economic difficulty down the road in the first place. Later, I wish to strengthen my economy situation by seeking more chance independently for study but eventually unsuccessful.

   It’s not long after arrived Australia, my family set up a house altar worshiping Yi Guandao (I-Kuan-Tao) which unanimously beneficial for both our entire family and relatives physically and spiritually. However, on Qingming Festival of 2014, our house altar was investigated by the local government for organizing a gathering to worship our ancestors. The house altar was thoroughly searched and a lot of Tao books and ritual things were found, and were consequently confiscated by the police. The local government warned them not to stick to the evil faith and engage in any I-Kuan-Tao activities any longer, or else, they threatened, I would be convicted and sentenced to imprisonment.

   In such stark situation, my family had been under the local government’s surveillance in community for long time so they don’t suggest me go back home as they had to move out of home town to prevent them from being persecuted due to their committed religion. Since the year of 2017, I was told that the local government seemed to become more and more radical. They extended their supervision to the smallest house gatherings, and even went so far as to encourage informing among masses. Now the government was trying to liquidate the faith of I-Kuan-Tao as throat-cuttingly as they previously did the faith of Falungong. Some of my relatives and fellows were arrested or fined, or both. Some were put under detention and needed to be bailed out with huge ransom, and moreover, before they were released, the detainees were forced to sign a guarantee statement and their family members were forced to assume the liability for their good behavior.

   Just before the Qingming Festival of 2017, our local government launched a special campaign to investigate those families that had held house gatherings, and monitored their whereabouts closely. One of my family’s fellow pursuers was searched several times and his arrest even affected his children’s future. All the above incidents had made me frightened at the prospect of my coming back to China and keeping to my chosen faith at the same time. It also encouraged me to file an application for protection after a through contemplation.

   Independent information

3. The 2021 DFAT report on China provides the following information (underlining added):

   Yi Guan Dao

   3.75 Yi Guan Dao (YGD, also: Tian Dao or I-Kuan Tao) is a syncretic Chinese religion combining elements of Buddhism, Confucianism and folklore. In December 1950, YGD was the target of a nationwide crackdown, after which the group was driven underground. It sought to re-establish itself following China's cultural revolution, but quickly became the target of campaigns of arrests in 1983.

   3.76 YGD beliefs may take different forms in different communities and might be influenced by different religions when established in different places around the world. Most practitioners are vegetarian. As with other xie jiao, the range of communities and propensity to split means that different adherents might have different beliefs.

   3.77 While YGD continues to be prohibited in China, it is not included on the list of active cults released in 2017 (see xie jiao (illegal cults)). The Dui Hua Foundation reports YGD followers in mainland China are likely to be concentrated in Guangdong and Fujian. The current status of the group is not clear, but data on court cases collected by Dui Hua found that arrests and imprisonment of members does occur, for example for proselytisation activities.

   3.78 YGD is not as large as it used to be but reports of some attention by authorities continue. Members are not allowed to practise their religion freely. DFAT assesses that members of YGD face a moderate risk of official discrimination and a low risk of societal discrimination.[1]

   [1] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp.23–24.

   TREATMENT OF RETURNEES

   5.28    DFAT is not able to verify the treatment of failed asylum seekers returned to China but has no information to suggest that they are targeted by authorities merely for having sought asylum. Chinese authorities are likely, however, to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum. The consequences for those applicants are not clear. See the relevant section of the report for information on treatment of specific Groups of Interest.

   5.29    Those wanted for outstanding warrants could still be charged on return to China. The general statute of limitations for crimes is five years (for a crime where the maximum penalty is up to five years in prison), ten years (where the maximum penalty for a crime is five to 10 years in prison), 15 years (where the penalty for a crime is not less than 10 years in prison) and 20 years (where the maximum penalty is life in prison or death). In practice, a person who flees from prosecution and then returns is likely to be arrested.[2]

   […]

   Exit and entry procedures

   5.31 Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.

   5.32 National security might be cited as a reason for refusing permission for a person (or those associated with them) to leave the country – an exit ban may only become apparent at the airport when travel is attempted. Exit bans are sometimes applied to family members of people residing outside China to coerce the foreign resident to return to China to face charges. Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list. DFAT is also aware of instances where members of certain ethnic minority groups have been denied passports.

   5.33 If a person is on an exit control list it is very unlikely, probably impossible, that they would be able to leave China. DFAT has not seen evidence of compassionate exemptions being granted to a person for family and health reasons. There is a legitimate risk that family members of an individual under investigation by Chinese authorities could be subject to an exit ban. This is not only for sensitive charges but also economic charges such as fraud.

   5.34 Exiting China by land outside of border crossings would be very difficult. The far western borders are less policed but also much harder to cross due to very harsh conditions. Border checks exist at Hong Kong and Macanese ports and land crossings, and special provisions are in place at the Mongolian border to allow passage of Mongolian and Russian citizens that use ‘one-time passports’ that allow travel to only one country. The borders with Vietnam and Myanmar are more porous but efforts have been made in recent years to strengthen them. China is reportedly building a 4.5 metre fence on its Southeast Asian borders. Checkpoints have been set up in Vietnamese border areas and local villagers help officials to patrol remote areas.

   5.35 DFAT assesses it is almost impossible to exit China without authorities’ knowledge. It is difficult or impossible to forge identity documents that would be able to be used in practice and technology and algorithms (rather than a human official who may be liable to bribery) may make decisions. Even if a human does inspect the document an ordinary citizen would find it difficult to bribe border protection agents DFAT Country Information Report People’s Republic of China December 2021 41 because of sensitivities to corruption, and the professional and comparatively well-paid status of public security officials.[3]

   [2] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, p.39.

   [3] DFAT, Country Information Report – People’s Republic of China, 22 December 2021, pp.40–41.

   Hearing, credibility, findings and assessment

4. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

5. The Tribunal is satisfied that the applicant is a citizen of China and accordingly his claims will be assessed against China.

6. The delegate interview and Tribunal hearing are the key processes by which applicants for protection visas are asked questions about their claims and credibility of claims made tested. The applicant did not attend either the interview with the delegate or the Tribunal hearing to which he was duly invited.

7. In these circumstances, and on the basis of the evidence provided, the Tribunal is not able to be satisfied as to any of the applicant’s substantive claims for protection.

8. The applicant is not satisfied that family members of the applicant in China have set up an I-Kuan-Tao temple which has been discovered or monitored by authorities causing adverse interest by authorities towards the applicant’s family members or other attendees, including arrest, harassment or monitoring, or has resulted in threats by authorities being made that the applicant is at risk of conviction and imprisonment. The Tribunal is not satisfied that the applicant has been warned by family members or anyone else not to return to China because of the risk from authorities.

9. The Tribunal is not satisfied that there is past, current or would be future religious activity by the applicant’s family or others in China that leads to the applicant being of adverse interest to authorities in China such that he faces a real chance of serious or significant harm on return to China.

1. There is no evidence that the applicant himself has engaged in religious activity in China or Australia, nor has the applicant indicated that he himself would be religiously active on return to China. The Tribunal on that basis is not satisfied that there is past, current or would be future religious activity by the applicant that leads to him facing a real chance of serious or significant harm from authorities on return to China as a result of his religious activity.

2. Given these findings, the Tribunal is not satisfied that the applicant faces a real risk of serious or significant harm for any of the reasons claimed.

3. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk of him facing significant harm.

4. 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 s 36(2)(a).

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

6. 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 any of the criteria in s 36(2).

   DECISION

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

   David McCulloch
   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.

   …