1812352 (Refugee)

[2022] AATA 1783

1812352 (Refugee) [2022] AATA 1783 (28 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1812352

COUNTRY OF REFERENCE:                   Pakistan

MEMBER:Paul Noonan

DATE:28 April 2022

PLACE OF DECISION:  Melbourne

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

(i)that applicant 1 satisfies s 36(2)(a) of the Migration Act; and

(ii)that applicants 2, 3, 4 and 5 satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the family unit of the applicant named at (i) above.

Statement made on 28 April 2022 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Pakistan – political opinion – long-term member and local official of political party – fear of harm from rival political party and extremist groups – detailed and consistent evidence – country information – real chance of persecution relates to all areas of country – no effective state protection – members of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), (2), (3)(c)(iii), (4), 5LA, 36(2)(a), (b)(i), 65
Migration Regulations 1994 (Cth), r 1.12, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 10 April 2018 to refuse to grant the applicants a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). Applicant 2 is applicant 1 “the applicant’s” wife and applicants 3, 4 and 5 are their underage children. Applicants 2, 3, 4 and 5 did not make their own separate claims to the delegate.

2. The applicant, who claims to be a citizen of Pakistan, applied for the visa on 24 July 2017. The delegate refused to grant the visa on the basis that he does not satisfy the criteria for the grant of protection. The delegate was satisfied that the applicants’ country of nationality is Pakistan, and the Tribunal is also satisfied, on the basis of the Pakistan passports and birth records on file, and accordingly has assessed their claims with respect to Pakistan as the country of reference or receiving country for the purposes of this appeal. The delegate was also satisfied that applicants 2, 3, 4 and 5 are members of the family unit as defined in reg 1.12 of the Migration Regulations 1994 (Cth) (the Regulations) and therefore also members of the same family unit as defined in s 5(1). The Tribunal is also satisfied that this is the case. There is no material before the Tribunal which may cast doubt on the existence of the genuine spousal relationship and the delegate also took no issue with the relationship. As such the Tribunal finds that applicants 1 and 2 have a mutual commitment to a shared life as a married couple to the exclusion of all others and the relationship between them is genuine and continuing and that they live together.

3. The Tribunal is also satisfied that applicants 3, 4 and 5 are the applicant’s children, on the basis of their birth certificates, for these purposes, as contained within the Department papers, which the delegate also took no issue with.

4. A preliminary consideration in this matter is that the applicant applied to the Tribunal for review of the delegate’s decision without including the other applicants in the application form. The Tribunal considers that there is clearly a requisite intention by applicants 2 to 5 to apply for review of the delegate’s decision and that they are accordingly persons with standing in this matter. The Tribunal finds that they have made valid applications for review. Accordingly the Tribunal’s case management system was updated at the instruction of the Presiding Member in this matter.

5. The hearing was scheduled during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by video conference. 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 video conference. Further the Tribunal took into consideration that the applicant is legally represented in this matter. The applicant appeared before the Tribunal on 2 December 2021 by video conference to give evidence and present arguments. The Tribunal also received oral evidence from a relative of the applicant who resides in Australia, [Mr A]. The hearing was subsequently adjourned after its allocated hearing duration was reached. The hearing resumed in person on 29 March 2022. During the resumed hearing, the Tribunal also received oral evidence from applicant 2.

6. Extensive pre and post hearing submissions were received by the Tribunal for this matter.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

8. The applicant is represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

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

10. 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.

11. 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).

12. 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.

13. 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

14. 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.

    PROCEDURAL HISTORY

15. The applicant was granted an FA600 visa on 4 April 2017 and arrived in Australia [in] May 2017 and then proceeded to lodge the XA866 protection visa application on 24 July 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The Tribunal took extensive evidence from applicants 1 and 2 and the witnesses in this matter and is satisfied that the applicant was a member of MQM from 1996 and eventually held a local level position as a [Position], facts that were also accepted by the delegate. It is reasonable to conclude that the applicant’s long-term involvement with MQM, in conjunction with the consistent evidence of the applicant and the witnesses in this matter, meant that he was a member of the party when it was led by the now exiled leader of the party, Altaf Hussain. The Tribunal was impressed with both the applicant and applicant 2’s impassioned and detailed evidence with respect to the history of the Muhajir peoples and the reasons for the establishment of MQM and their respective fear of harm due to the applicant’s past political involvement and profile and finds this lends credibility to his claims to have had a long involvement with MQM, in particular the iteration of the party led by Altaf Hussain. The Tribunal accepts as credible the applicant’s evidence that he took steps to dissociate himself from MQM for his own safety after Altaf Hussain was exiled, however his profile as a useful member of MQM and one who was involved with [Position function] led him to remain a person of interest to the PSP that rose to prominence upon the loss of local power by Altaf Hussain. While the Tribunal has some doubts as to the credibility of the applicant’s claim to have suffered past harm from the authorities and PSP for the reason of refusing to join PSP, this is of no matter in this case because of the relevant country information as to the current situation of a person of the applicant’s political profile and opinion in Pakistan, which appears to have deteriorated significantly since the delegate made their decision.

17. The latest DFAT report, with regard to Pakistan, sets out evidence of recent targeted violence including detention, torture and targeted killings of members of MQM in Karachi where MQM is based and where the applicant is from.[1] Importantly with respect to this case, DFAT notes that MQM has also been targeted by the TTP terrorist group because of its secular ideology and support for the US-led ‘War of Terror’.[2] DFAT also assesses that MQM members who are associated with (or perceived to be associated with) political violence and/or criminal activities face a moderate risk of violence from security forces.[3] This appears to be a continuation of the authorities’ policy as claimed by MQM of arbitrary arrests, killings and disappearances of MQM workers that has been going on for many years and DFAT notes that these abuses allegedly still occur.[4] The Tribunal also notes extensive country information in the form of news reports reflecting arrests of people alleged to be affiliated with MQM London (Altaf Hussain’s group) and described as targeted killers, and, in particular, allegations of Indian State involvement with these people occurring during 2020.[5]

    [1] DFAT Country Information Report – Pakistan, 25 January 2022, p.29

    [2] DFAT Country Information Report – Pakistan, 25 January 2022, p.29

    [3] DFAT Country Information Report – Pakistan, 25 January 2022, p.29

    [4] DFAT Country Information Report – Pakistan, 25 January 2022, p.29

    [5] See the Tribunal file for copies of such reports.

18. Given the above country information and the accepted profile of the applicant, the Tribunal finds that there is a real chance that, in the reasonably foreseeable future, the applicant will be subjected to serious harm in the form of targeted killing due to either his political opinion or his imputed political opinion should he return to Karachi by either members of the PSP, the security forces or members of the TTP terrorist group.

19. With respect to the situation in the rest of Pakistan, the Tribunal is also concerned by recent developments. DFAT reports that there has been a significant uptick in terrorist attacks in 2021 with the TTP and other domestic jihadist groups carrying out most of these attacks. Country information reflects that the authorities allow such extremist groups to campaign in Pakistan. Further that since 2020 there has been a sharp rise in targeted killings and hate speech against religious minorities.[6] It is also credibly reported that the TTP have recently significantly increased the frequency and level of their attacks against targets of interest to them, including multiple attacks on police in Islamabad, Rawalpindi and Balochistan.[7] In the first seven months of 2021, country information reflects that there were 459 security incidents in Pakistan, including 194 battles, 123 explosions/remote violence and 142 attacks against civilians. 97 incidents were classified as terrorist attacks by the Pak Institute for Peace Studies and 180 persons killed in such attacks.[8] An analysis of terrorist attack locations in 2020 reflects the violence is widespread across Pakistan and no area is currently free from terrorist-related targeted violence.[9]

    [6] European Asylum Support Office - Pakistan Security Situation, October 2021, p.21

    [7] European Asylum Support Office - Pakistan Security Situation, October 2021, p.30

    [8] European Asylum Support Office - Pakistan Security Situation, October 2021, p.45

    [9] European Asylum Support Office - Pakistan Security Situation, October 2021, p.70-106

20. The Tribunal is satisfied from the evidence of the applicant given at hearing that this fear of harm is subjectively held by him and that there is a real chance that, if the applicant returns to Pakistan, they would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) and as such the criteria at s 5J(1)(a) and (b) are met. Further relevant country information indicates that the real chance of persecution is prevalent in all areas of Pakistan, given the apparent rise in power and activity of the nationalist TTP terrorist group across the country and their willingness and desire to target members of MQM for the reasons set out earlier. As such the Tribunal finds that the real chance of persecution relates to all areas of the receiving country as per s 5J(1)(c).

21. The Tribunal finds that the applicant’s political opinion actual and/or imputed political opinion is the essential and significant reason for the persecution, as per s 5J(4)(a), that the harm feared constitutes serious harm as per s 5J(4)(b) and that it would be as a result of systematic and discriminatory conduct against the applicant as per s 5J(4)(c).

22. The Tribunal must also consider the issue of State protection and whether the applicant is unable or unwilling to avail themselves of the protection of the Pakistan authorities. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable, and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

23. While the Pakistan authorities reportedly carry out security operations against terrorist groups, the country information with respect to their activities leaves much room for doubt as to whether they are willing and able to offer such protection, whether the protection actually is durable and whether it actually consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. This is because of the continual reports that the authorities have tacit agreements with certain nationalist terrorist organisations in part to place pressure on India.[10] Further country information reflects poorly on the police with USIP mentioning that ‘police stations remain focused on their traditional roles of controlling crime and maintaining order and have not accepted countering terrorism as part of their mission’.[11] The police are perceived as ‘inefficient, corrupt, brutal, unprofessional and politicised’.[12] DFAT reports that in 2021, the US Department of State reported evidence of extrajudicial killings by security forces across Pakistan. Further DFAT notes that the authorities frequently target people for disappearance including suspected militants, activists, students, opposition politicians, human rights defenders, journalists and lawyers. Disappearances can last as little as hours and as long as years. Some disappeared individuals are killed. Those released are often reluctant to talk about their captivity. Many are reportedly tortured and suffer permanent disabilities and long-term psychological trauma.[13]

    [10] European Asylum Support Office - Pakistan Security Situation, October 2021, p.26-27

    [11] USIP, A Counterterrorism Role for Pakistan’s Police Stations, 18 August 2014, pp.3-4

    [12] Dawn, Sisyphean task, 21 July 2019; International News (The), Inefficiency, corruption smears police department, 12 March 2018; International News (The), Inefficiency and corruption blotch police, 17 June 2019; Nation (The), Police Reforms, 18 June 2021,

    [13] DFAT Country Information Report – Pakistan, 25 January 2022, p.37

24. There are frequent, credible reports of torture by Pakistani security forces. The most common method is beating, but other methods include sexual violence and humiliation. There are also reports of torture involving electric shocks. In May 2017, the UN Committee against Torture reported evidence that the Pakistani military, paramilitary and intelligence services frequently used torture and almost never faced punishment, and expressed concern that extrajudicial executions and enforced disappearances may also have involved torture.[14]

    [14] DFAT Country Information Report – Pakistan, 25 January 2022, p.38

25. More generally with respect to State protection, DFAT assess that State protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors at the individual level and lack of political will. Some groups are denied adequate State protection on discriminatory grounds (for example, Ahmadis). Despite measures introduced to curb violence across the country under the NAP – including strengthened powers for military and paramilitary security forces and the establishment of military courts – successful prosecution for politically motivated or sectarian violence is rare. This is due to ineffective police investigations, a lack of forensic capabilities and prosecution and judicial legal understanding, and threats against judges, lawyers, witnesses and their families.[15]

    [15] DFAT Country Information Report – Pakistan, 25 January 2022, p.40

26. Given this country information with respect to the state of the authorities and their attitude towards nationalist terrorist groups such as the TTP and the methods employed by the authorities including the outright denial of protection on discriminatory grounds, the Tribunal finds that the State does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system, and as such the State is not taken to offer protection against persecution from nationalist terrorist groups such as the TTP to the applicant. Further there is no country information that reflects that effective protection is available to the applicant from any other party or organisation including any international organisations and that no such party or organisation controls any part of Pakistan. Accordingly the applicant’s fear of persecution is well-founded.

1. The Tribunal must also consider whether the exception contained in s 5J(3) applies to the applicant, that is, whether he could take reasonable steps to modify his behaviour so as to avoid persecution. The Tribunal finds that the applicant’s fear of persecution is because of his political opinion and his profile as a support of the MQM political party led by the exiled leader Altaf Hussain. As such he falls within the exception at s 5J(3)(c)(iii).

2. Finally, there is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Australia, and as such the exception with respect to third country protection contained at s 36(3) does not apply.

   Conclusion

3. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and he satisfies the criterion set out in s 36(2)(a) of the Act.

4. The Tribunal is satisfied that applicants 2, 3, 4 and 5 are members of the family unit of applicant 1 for the purposes of s 36(2)(b)(i) of the Act. As such the fate of their applications depends on the outcome of the applicant’s application. It follows that applicants 2, 3, 4 and 5 will be entitled to a protection visa, provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

   DECISION

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

   (i) that applicant 1 satisfies s 36(2)(a) of the Migration Act; and

   (ii)that applicants 2, 3, 4 and 5 satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the family unit of the applicant named at (i) above.

   Paul Noonan
   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.

   …