1808284 (Refugee)

[2024] AATA 2419

1808284 (Refugee) [2024] AATA 2419 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1808284

COUNTRY OF REFERENCE:                   China

MEMBER:Linda Holub

DATE:2 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 2 April 2024 at 11:06am

CATCHWORDS

REFUGEE – Protection Visa – China – declined the Tribunal’s hearing invitation – insufficient detail regarding the acquisition of the poultry farm by his wife – not satisfied that the applicant has a well-founded fear of persecution – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Randhawa v MILGEA (1994) 52 FCR 437

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 Home Affairs on 8 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

2.    The review applicant was born in [Fushun], China in [year] and is a citizen of China. He speaks, reads and writes Chinese Mandarin. He is divorced. In China he has his adult son, mother and father. His ethnicity is Chinese, and he is not religious.

3.    The applicant departed China legally using his own passport. Department records indicate the review applicant first arrived in Australia on [date] November 2017 travelling on his Visitor (class FA) (subclass 600) visa granted on 16 October 2017 which was due to cease on [date] February 2018.

4.    On 6 November 2017 he lodged the application for protection and on 24 November 2017 he was granted a Bridging visa A that is currently in effect. The application was refused on 8 March 2018 and on 26 March 2018 he sought review of the Department’s decision at the Tribunal.

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.

Country information

1. The March 2015 DFAT Country Report on the People's Republic of China, which was the current report at the time of the applicant’s departure from China states:

   5.26 DFAT assesses it would be difficult to depart China on a fraudulent passport owing to the sophisticated technology used and the degree to which surveillance by immigration and security agents occurs at China’s major airports. Overt bribery of border protection agents by an ordinary Chinese citizen would be difficult because of sensitivities to corruption, the professional and comparatively well-paid status of the Public Security Ministry, and the high-profile nature of its work. DFAT is aware of fraudulent documents being used in support of visa applications (such as hukou registration, proof of employment, academic transcripts, banking statements and ID cards). DFAT assesses these documents are relatively easy to produce and are commonly used in visa applications. DFAT has been told of the existence of sophisticated syndicates that service call centres set up specifically to provide targeted background stories in support of fraudulent documents used in visa applications.

Issues

1. The issues in this review are whether there is a real chance that, if he 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 him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purposes of s 36(2)(aa) of the Act.

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

CLAIMS AND EVIDENCE

Protection visa application

Protection claims  

1. The applicant’s written claims for protection were summarised by the delegate in the Department’s decision, as follows:

   ·The applicant was continually suffering from persecution by the Chinese government, and he is so scared to return to China now.

   ·In 2007, his wife used savings and borrowed money to develop a poultry farm. They signed a contract to lease a piece of land for 10 years.

   ·After the Spring Festival in 2013, the local government asked the applicant’s wife to close the poultry farm. In March 2013, a senior officer from the Demolition and Removal Office came to their home with others and showed her demolition documents She told them that she would not agree unless compensation of RMB 500,000 was paid. The official required the applicant’s wife to dispose of the poultry within one month and demolish the farm.

   ·In April 2013, the applicant and his wife were invited by the official to go to the Neighbourhood Committee. He advised them that the compensation they would receive was RMB 350,000, that it was not negotiable, and that he would demolish the farm if they did not agree.

   ·In May 2013, a group of seven or eight people and police came and demolished the farm. The applicant argued with the police and had ‘physical contact’ with some of them. He was handcuffed and taken to a nearby police station where he was detained for seven days, accused of disobeying the law. He was released after paying RMB 5,000.

   ·Most of the money for the farm had been borrowed and now they were unable to repay it. The debtors came to the applicant’s home every day and threatened to sue his wife.

   ·The Neighbourhood Committee delayed paying compensation because they said that the applicant and his wife had disobeyed the law.

   ·From October 2013, the applicant petitioned the town and city governments many times, begging to resolve the compensation issue. He did not receive any reply.

   ·At the end of January 2014, he wrote a letter to the Letters and Visits Bureau of Liaoning Province about the corruption of local officials.

   ·In May 2014, the [town] government called and asked the applicant to go to the office to negotiate compensation. When he arrived, the police were also there. The official talked to the applicant for about ten minutes, and then he was taken by police to the local police station. He was brutalised by police and warned not to petition again. If he continued, he would suffer and be put into prison for life.

   ·After he was released, he was required to report to the police every week.

   ·After one week, he wrote a secret petition letter to the Liaoning province government.

   ·In Shenyang, he was intercepted by police, detained in a detention centre and brutalised. He was slapped, hit with an electric baton and not allowed to sleep.

   ·He became ill with a fever, and the police allowed his release after payment of a RMB10,000 fine so he wouldn’t die in detention. He was ordered not to leave his town and report to police. If he disobeyed the law again, they would arrest and detain him.

   ·The police often went to his house to cause trouble. In May 2015, the applicant’s wife had an argument with police during one of these visits. The policeman pushed her. She hurt her hips and can no longer walk properly.

   ·The applicant and his wife divorced so she would no longer be affected by his actions.

   ·After he came to Australia, he missed his family and intended to go back to China. However, he did not return because he knows that the police are still coming to his home and harassing his family.

The delegate’s decision

1. The applicant was invited to attend a Departmental Protection visa interview scheduled for 14 March 2018. The applicant was properly notified of the scheduled interview by email on 21 February 2018. The applicant did not attend the interview. No reason was provided to the Department for the applicant’s non-attendance. As the applicant did not attend the interview the application for a Protection visa was determined based on the information provided in their application form.

2. The delegate in their decision found that in the applicant’s case, the written material did not provide a sufficient basis to be satisfied that the applicant is in fact of interest to Chinese authorities or that they would face harm of any kind for such reasons were they to return to China.

3. In light of the information before the delegate, considered individually and cumulatively, the delegate was unable to be satisfied there is a real chance that the applicant would suffer persecution for reasons relating to their issues with the authorities over the compensation for his wife’s poultry farm. The delegate was not satisfied there is a real chance of persecution for one or more of the reasons mentioned in subsection 5J(1)(a) in the receiving country. Consequently, the delegate found that the applicant is not a refugee as defined in section 5H and the criterion in paragraph 36(2)(a) of the Act was 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 that the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act. Therefore, the delegate found that the applicant is not 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. He provided a copy of his People’s Republic of China passport in the identity as claimed by the applicant. The Tribunal finds that the applicant is a citizen of China, which is also his 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 March 2018 and provided a copy of the delegate’s decision. The applicant did not provide any other material to the Tribunal in support of his application and has not engaged with the Tribunal.

2. The applicant was not represented in relation to the application for review.

3. On 25 January 2024 the applicant was invited to appear before the Tribunal on 27 February 2024 to give evidence and present arguments. The letter pointed out that having considered the material available in relation to his application that the Tribunal is unable to make a favourable decision on that information alone.

4. On 8 February 2024 the applicant returned their completed response to hearing form advising that they would not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow him to appear.

5. On 29 February 2024 the Tribunal wrote to the applicant seeking confirmation that he had requested a decision on the papers without the Tribunal taking further steps to allow him to appear to give evidence and present arguments. The email explained that a decision on the papers means that the Tribunal may affirm the delegate’s decision (that is, there is no guarantee that the decision made will be in his favour).

6. To date the Tribunal has not received a response.

CONSIDERATION OF CLAIMS AND EVIDENCE

FINDINGS AND REASONS

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 his written application. The Tribunal is unable to establish from this information that he will be persecuted if he returns to China.

3. The applicant did not provide sufficient detail regarding his claims that he was continually suffering from persecution by the Chinese government, and he is scared to return to China. The applicant provided insufficient detail regarding the acquisition of the poultry farm by his wife and how it was funded and in relation to its demolition and the compensation that was offered to them. Nor did he provide sufficient details regarding his argument with the police, that he was handcuffed and taken to a police station and detained for seven days or about his release after paying a fine. The applicant also did not elaborate on issues regarding the debt he and his wife had in borrowing money for the farm and the delays in the compensation being paid to them, the subsequent petitions to the town and city governments or the correspondence he had with the Letters and Visits to the Bureau of Liaoning Province about the corruption of local officials.

4. The applicant made claims about being taken to a police station and being brutalised by police and warned not to petition again but did not elaborate on this nor about the requirement to report to the police every week. No information was provided by the applicant about his secret letter petitioning the Liaoning province government. Additionally, insufficient details were provided about why he was again detained and put in a detention centre and brutalised, slapped, hit with an electric baton, and not allowed to sleep. The applicant did not provide sufficient information about his release from detention nor about being ordered to remain in his town and report and the claimed threats that he would be arrested and detained if he disobeyed the law again. It is not clear why the police often went to his house to cause trouble. The applicant did provide sufficient detail in relation to the argument his wife had with police in May 2015 and her being pushed by police resulting in her hurting her hips which impacted on her ability to walk.

5. The applicant did not explain why the police are still coming to his home years later and harassing his family.

FINDINGS AND REASONS

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 applicant’s claims in their application for protection submitted to the Department were vague and unsubstantiated and as a result, the Tribunal attempted to elicit more information by inviting the applicant to a hearing. Had he attended the hearing, I would have asked him about his background and circumstances and to elaborate on his claims.

3. The Tribunal is concerned that the applicant chose not to attend the hearing which was scheduled for him to provide oral evidence in support of their claims. No reason was provided by the applicant for his non-attendance. The Tribunal is of the view that if the applicant was genuinely concerned that he was at risk of harm if he returned to China, they would have attended the hearing or sought an adjournment if they were unable to attend on the specified day and at the specified time. The fact that he did not do so raises concerns about the veracity of his claims. Furthermore, the Tribunal is concerned the applicant did not attend the interview with the Department.

4. It is the responsibility of applicants to make their claims and to provide as much detail as possible in order for the decision-maker to reach a level of satisfaction that certain events occurred or did not occur.

5. The Tribunal has taken into consideration the country information which indicates that DFAT assesses it would be difficult to depart China on a fraudulent passport. From the information available, the Tribunal accepts the applicant departed China on his own passport. Given that and in view of the lack of detail provided by the applicant, the Tribunal is not satisfied that they left the People’s Republic of China (PRC) because he was continually suffering from persecution by the Chinese government, and he is scared to return to China.

6. Based on the information provided by the applicant, the Tribunal is not satisfied:

   ·the applicant and his wife borrowed money to acquire a poultry farm which was demolished and that they were unsatisfied with the compensation offered to them.

   ·the applicant had an argument with the police and that he was handcuffed and taken to a police station and detained for seven days and release after paying a fine.

   ·following delays in the payment of the compensation being paid to them, he petitioned the town and city governments and corresponded with the Letters and Visits Bureau of Liaoning Province about the corruption of local officials.

   ·the applicant was taken to a police station and was brutalised by police and warned not to petition again and then required to report to the police every week.

   ·secretly petitioned the Liaoning province government and again detained and put in a detention centre where he was brutalised, slapped, hit with an electric baton and not allowed to sleep.

   ·following his release from detention he was ordered to remain in his town and told to report and threatened that he would be arrested and detained if he disobeyed the law again.

   ·the police often went to his house to cause trouble and that his wife had an argument with police in May 2015, and that she was pushed resulting in her hurting her hips which impacted on her ability to walk.

   ·the police are still coming to is home and harassing his family.

1. Based on the independent country information it is highly unlikely that the applicant would have been able to depart China if he was of interest to the authorities. Given that together with the paucity of the information put forward by the applicant and that he applicant did not present at interview or hearing to elaborate on his claims, the Tribunal is not satisfied that he cannot return to China because he is of interest to authorities or that he will be harmed in any way if he returns.

2. Considering the totality of the information and evidence made available by the applicant 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 they return to China. Accordingly, the Tribunal is not satisfied that he has a well-founded fear of persecution in China. Therefore, he 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. Similarly, the Tribunal is not satisfied that the available evidence supports that a claim 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 he 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 does not satisfy 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.

…