1731202 (Refugee)

[2020] AATA 3740

1731202 (Refugee) [2020] AATA 3740 (3 July 2020)

Corrigendum

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731202

COUNTRY OF REFERENCE:                   China

MEMBER:Mara Moustafine

DATE OF DECISION:  3 July 2020

DATE CORRIGENDUM

SIGNED:14 July 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

At paragraph 11 the date “1 April 2020” to be amended to “25 June 2020”.

At paragraph 21, the words “the applicants are persons” to be amended to “the applicant is a person”.

Mara Moustafine
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1731202

COUNTRY OF REFERENCE:                   China

MEMBER:Mara Moustafine

DATE:3 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2020 at 11:03am

CATCHWORDS

REFUGEE – protection visa – China – dispute with local government about compensation for acquisition of house by developer – fear of harm from police and gangsters – credibility – vague, inconsistent and changing evidence – delay in departure – country information about land confiscation and compensation – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559

Nagalingam v MILGEA (1992) 38 FCR 191

Prasad v MIEA (1985) 6 FCR 155

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 8 December 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of China and is [age] years old. He arrived in Australia [in] July 2017 as a holder of a Visitor visa. He applied to the Department for a Protection visa on 8 August 2017.

   Evidence before the Department

3. According to his Protection visa application form, the applicant was born in Jixi, Heilongjiang province, China. He is Han Chinese by ethnicity, of no religion and reads, writes and speaks Mandarin. The applicant lived in Jixi until 2012, where he completed middle school in [year] and worked part-time, then moved to Weihai, Shandong Province where he lived and worked part-time until 2017. He did not provide details of his occupation. He is divorced and has a [age]-year-old [child], who lives in China, as do his parents. He indicated that he left China legally on his own passport issued [in] 2016.  

4. The applicant’s protection claims, as outlined in his application form can be summarised as follows:

   ·He was notified by the local government that his house would be removed by a developer to build a new factory but was only offered a third of the market-price in compensation. He and other residents refused to sign the unfair agreement.

   ·The local government sent people to remove his house. They smashed all the goods in the home, threatened him and beat him as he tried to prevent ‘their behaviour’. He called the police but was ignored.

   ·He and other residents decided to make a petition and wrote a letter to the city government, seeking a reasonable explanation and compensation. However, once officials found out, they sent police to capture him. He was scared so he escaped China and fled to Australia.

   ·He fears that, if he returns to China, he will be persecuted by the police, suffer mental and physical persecution in prison and die.

   ·He does not believe the authorities in China will protect him because the government is corrupt, officials collude with the police and only care about their own benefits. He does not believe he can relocate to another part of China as the situation is the same in the whole of China.

5. With his application, the applicant submitted a copy of his Chinese passport issued [in] 2016.

6. The applicant failed to attend his scheduled Protection visa interview with the Department on 8 December 2017.

7. On 8 December 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection visa as she was not satisfied that he was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.

   Evidence before the Tribunal

8. On 11 December 2017, the applicant applied to the Tribunal for a review of that decision, a copy of which he provided to the Tribunal for the purpose of the review. He is taken to be on notice of its findings and reasons.

9. On 10 June 2020 the Tribunal wrote to the applicant inviting him to give oral evidence and present arguments relating to the issues arising in his case at a hearing on 25 June 2020. The applicant was advised that due to the COVID-19 (coronavirus) pandemic, the Tribunal was not holding face to face (in person) hearings since Monday, 23 March 2020 and was currently closed to all visitors until further notice. He was advised that his hearing would, therefore take place by telephone.

10. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

    The hearing

11. The applicant appeared before the Tribunal by teleconference on 1 April 2020 to give evidence and present arguments.

12. At the start of the hearing the applicant confirmed that he was in a quiet and private place and that he had no objection to the hearing proceeding by telephone. Although the call dropped out 35 minutes into the hearing, it was quickly reconnected, and the hearing proceeded satisfactorily. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

13. The Tribunal discussed with the applicant his background in China, his reasons for leaving China and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

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

15. 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.

16. 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).

17. 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.

18. 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.

19. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of 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.

    Credibility

20. 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. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself 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. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

    Analysis, Findings and Reasons

21. The issues that arise on review are whether the applicants are persons in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

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

23. In the course of the hearing, the applicant told the Tribunal that his application form had been prepared with the assistance of a migration agent, whose surname was [A], to whom he paid $[amount]. The applicant claimed that he did not know what was in his application form as the agent did not read it back to him but simply told him to sign the form. In light of this, in assessing the applicant’s claims, the Tribunal has not given weight to information provided in this form or any inconsistencies arising from it. Rather, the Tribunal has focused on the applicant’s oral evidence to the Tribunal at hearing, as elaborated below. 

24. Nevertheless, as discussed with the applicant, the Tribunal is concerned that he was prepared to submit a visa application form to the Australian government in which he declared that he had ‘provided complete and correct information in every detail on this form’, when this was clearly untrue, notwithstanding his claim that his agent told him that all he had to do was to sign his name.

25. The applicant told the Tribunal that he decided to come to Australia in July 2017 because his life in China was hard and he barely had any income. He claimed that his house in Weihai, Shandong province was seized by gangsters, and he had nowhere to live. When he saw that there was no hope of getting his house back, he decided to come to Australia and obtained a Tourist visa through an agent. He said he wanted to stay here to avoid his problems for a while, but after he saw that the Australian government was ‘really good’, he decided to apply for a Protection visa.

26. The Tribunal found the applicant’s evidence about key aspects of his claims – particularly surrounding the alleged seizure of his house and the actions he took subsequently – to be vague, inconsistent and lacking in detail. This raises doubts about his truthfulness and the general credibility of his evidence.

27. Significantly, the applicant was unable to provide the address of his house, other than saying that it was in [a] village in rural Weihai, nor any evidence of ownership, though he claimed it was left to him by his parents who died when he was 17 years old. He was also vague as to when the house was seized, saying he thought it may have been in March 2016 and then that he could not remember. He claimed that he did not receive any notification that it was going to be demolished but found out when ‘many people’, whom he did not know but thought were ‘gangsters’, showed up and told him he was not allowed to live there anymore. As he did not want to leave, they hit him, cursed him and beat him up.

28. The applicant’s evidence as to what happened to his house and what action he took shifted in the course of the hearing. While he initially told the Tribunal that ‘the underground gangsters from the village’ were now living in his house and that ‘they planned to rebuild’, he later said they wanted to build a freeway and that the house had been demolished and was gone. When the Tribunal pointed to the inconsistency with his earlier evidence that gangsters were now living in the house, he responded that when he left the house, the gangsters were living inside but when he was preparing to leave China, the house had been demolished in preparation for the road being built. While he initially said he did not know who owned the freeway, he later said it belonged to the government.

29. Asked what he did after his house was seized, the applicant said he rented a small property and went to court to sue the people who took his house. Asked how he could do this when he claimed not to know who these people were, the applicant said all he had to provide to the police bureau was the address of his property – which, he earlier told the Tribunal, he did not know and that the police registered the information but nothing eventuated. Asked if he had copies of the information which the police registered, the applicant shifted his evidence to say that he only went there to say he wanted to sue them and was told to wait for a notification from the court, which he never received.

30. Later in the hearing the applicant claimed that he stayed in hospital for two months after his house was seized because his [specified bones] were broken when he was beaten up by the gangsters. When he reported them to the police bureau, he was told to wait for notification. To the Tribunal’s query as to how he was able to go to the police bureau if his [bones] were broken, the applicant responded that he reported to the police two months after the incident (putting it around May 2017). He said he did not have a copy of any police report as he reported it verbally and there were no documents. The applicant also claimed that he or a lawyer he found also wrote a letter to the civil court in Weihai that ‘they’ had taken his property and he had nowhere to live, but no one did anything. He thought this was in October 2016, but he no longer had a copy of the letter.

31. The applicant was asked several times whether he had been offered compensation for his property by the government but did not answer the question directly. He responded categorically that he did not receive any compensation, saying variously that he was not there at the time and did not know what happened afterwards and that maybe there was something offered ‘but somebody else took it’ because ‘they’ forced him to get out. 

32. The Tribunal drew to the applicant’s attention that according to country information, while individuals in China could privately own property, the state retained ownership of the land itself. While Chinese authorities had undertaken extensive land confiscation to make way for development, there were mechanisms in place to provide affected Chinese citizens ways to seek compensation for appropriated land and property[1]. The applicant responded that he did not really know about these issues.

    [1]   Li, F 2004, ‘China’s Land Law: An Overview’, Finance Asia, 19 August, Habitat International Coalition;  DFAT, DFAT Country Information Report People’s Republic of China, 3 October 2019

33. Asked what he did in China between October 2016 and his departure for Australia, the applicant said he waited for notification from the court, worked in [a factory] and lived in a rented property. He said he did not know the address of his home as he only lived there for a short time but that it was in Weihai, Shandong province. Asked why he did not know the addresses of the places where he lived in China before coming to Australia, the applicant did not answer directly, saying that it was because his property was gone.

34. The applicant claimed he was afraid to return to China as the gangsters who occupied his house and harmed him in the past in Weihai would still come for him because he had refused to give them his house and reported them to the police bureau. As discussed with the applicant, the Tribunal does not find it plausible that he would still be of interest to these unidentified people, given his evidence that they had already seized and demolished his house around March 2016 to make way for a freeway. Further, the applicant told the Tribunal that he continued to live and work in Weihai until he left for Australia in July 2017, more than one year after his alleged confrontation with these people. In the Tribunal’s view, if they had wanted to harm the applicant, they had plenty of opportunity to do so while he was still in China. Moreover, by the applicant’s own evidence his [sibling] is living in Weihai to this day without incident.  The Tribunal is, therefore, satisfied that the applicant would not be at risk of serious or significant harm at the hands of these unidentified gangsters for the reasons claimed should he return to China now or the reasonably foreseeable future.

35. The applicant confirmed to the Tribunal that he left China legally on his own passport issued in [2016], several months after his claimed eviction from his property and around the time he reported the gangsters who beat him up to the police. The Tribunal is therefore satisfied that he was not of interest to the Chinese authorities at the time of his departure from China and has no reason to believe that he will be of interest to the authorities on his return.

36. The Tribunal’s concerns about the credibility of the applicant’s claims are compounded by the absence of any documentary evidence to support them. The Tribunal acknowledges that documents are not always available in cases such as the present but in the Tribunal’s view, given the nature of the applicant’s claims, the applicant should have some documentation available to him. For example, he claims he owned the house which was seized but was unable to provide any evidence of ownership. The applicant claims he reported the gangsters who seized his house to the police and wrote a letter to the court, but he offered no documentary evidence of these events. Nor was he able to provide reports from the hospital where he claimed to have spent two months after being beaten by the gangsters. The Tribunal has formed the view that the absence of any documentary evidence in support of the applicant’s claims suggests these claims may not be true.

1. In light of the multiple concerns discussed above, the Tribunal is not satisfied that the applicant has given a truthful account of his experiences in China or that any of his evidence can be relied upon. The Tribunal is not satisfied that the applicant owned a house in Weihai, Shandong province, which was seized by gangsters in order to make way for a freeway owned by the government; nor that he was beaten up and harmed by them resulting in his hospitalisation due to broken [bones]. It follows that the Tribunal is not satisfied that should he return to China now or in the reasonably foreseeable future, the gangsters who occupied his house and harmed him in the past in Weihai would come for him because he refused to give them his house and reported them to the police bureau. Rather, it is the Tribunal’s view that the applicant fabricated his claims in order to achieve a migration outcome.

2. For the reasons given above, the Tribunal is not satisfied that, if the applicant were to return to China now or in the reasonably foreseeable future, there is a real chance that he will be harmed for any of the other reasons set out in s.5J(1)(a) of the Act. The Tribunal finds that the applicant does not have a well-founded fear of persecution in China.

3. The Tribunal has also considered whether the applicant is entitled to complementary protection. Having rejected the entirety of the applicant’s claims, on the evidence before it,  the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. 

   CONCLUSIONS

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 the criterion in s.36(2).

   decision

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

   Mara Moustafine
   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.

   …