1818709 (Refugee)

[2019] AATA 1133

1818709 (Refugee) [2019] AATA 1133 (22 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818709

COUNTRY OF REFERENCE:                  Kenya

MEMBER:Angela Cranston

DATE:22 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2019 at 11:23am

CATCHWORDS

REFUGEE – protection visa – Kenya – sale of family land – threats by family members – member of Kalenjin clan – clash with Kikuyu – lack of credibility – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1.This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 June 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2.The applicant who claims to be a citizen of Kenya, applied for the visa on 25 October 2016.

3.In his application, the applicant stated as follows:

I left Kenya initially to come and study in Australia. I sold a piece of land that I inherited from my grandmother to come and study and have a better future in Australia.

There was a conflict ongoing between myself and my uncles [and] my auntie’s [as] I had sold the land that I was given as inheritance by their mother, namely my grandmother. I left Kenya in hiding and none of my family knew where I had gone except for my mother as feared for my safety as they would hurt me for selling the land and taking the money which they believed had belonged to them. I received about [amount] for selling the land which was sold on [date]/7/ 2013. I used the money for school fees but could not study in Kenya due to fear of being attacked and harmed by uncle and aunts.

After selling the land I was attacked by a group of people on [date]/8/ 2013, in the centre as going back home, they had beaten me and a teeth were knocked out and I was taken to hospital. I stayed in hospital for [a few] days and I was scared to make a police report, I feared retaliation by the attackers. I didn’t know the attackers however since the time I feared for my life. I believe strongly that it was my uncle and aunts who had set up these people to hurt me. Upon my return back home from the hospital my uncle and aunts were not shocked at my attack which I went through, they rather reacted very calm and normal throughout the whole ideal I went through.

I didn’t enol into a course in Kenya due to fearing for my life after the attack in the centre, I knew that this was not a random attack. I ran away from home and went to live with my friend [in] Nairobi. I live with my friend until my Australian visa was processing and finalised. My mother is [employed], she was my sponsor at the time to come to Australia, she taken out a loan to help me flee.

I am unable to return to Kenya and live there peacefully without been hurt or persecuted and I do not contact my mum maybe once a month as I also fear for her safety. My uncle and aunts are physically abusing my mother by coming to my mother home and throwing stones and breaking glasses, asking for me. My mother to date did not disclose where I am.

The government in Kenya is unable to protect me in this situation and I am unable to go and live in any other part of Kenya, as they will find me and injure me. The police and government can’t provide protection as uncle is an ex-[official] who has access to all movements of these who live in Kenya and its surrounding cities.

4.The delegate refused to grant the visa and the applicant applied for review.

5.A hearing was held on 8 January 2019. At that hearing, the applicant stated he arrived in Australia [in] June 2014 on a student visa and held a student visa up until October 2016. He stated he applied for a protection visa on 25 October 2016. The applicant stated he completed the forms with the assistance of an agent. He stated he told her what to write, she wrote it down but did not read it back to him.

6.The applicant stated that his last address in Kenya was Nairobi where he moved in October 2013 up until he departed. Before that he was in Eldoret. He said he came to Australia because he was running away from his aunt and uncle who wanted to kill him because he sold his piece of land and they were not happy. He said they also treated him unfairly when he was young. He said he was given the piece of land by his grandmother who passed away in 1996 and he sold it in July 2013 for [amount]. He also stated he had evidence he sold the land and supplied a contract between his mother and [Mr A].

7.The Tribunal put to him that at Departmental interview he said the land was sold in August 2012 and he stated that was not correct. The Tribunal put to him that in his statement he said he received around [amount]. He stated he told the migration agent that he came to Australia with [amount].

8.When asked who paid for him to come to Australia the applicant said he used the money and his mother had a loan. The Tribunal put to him that he told the department that he paid for the student visa but no one took out a loan. He stated there was an amount left over from the sale of the land that was put into his mother’s account but that money belonged to him.

9.The Tribunal asked how many times he had been assaulted and he stated twice. The Tribunal put to him that in his statement he only talked about one assault and asked why. He stated when he was first assaulted in 2013 he did not report it. He said in 2014 his life was in danger because he returned to Eldoret to see his family who then assaulted him. When asked why he had not mentioned that in his statement he stated he felt that it had nothing to do with his visa.

10.When asked if there were any other reasons he could not return he stated his life would be in danger from his family because they had asked for money from his mother in 2014 and if he returned they may think he still had a lot of money.

11.The applicant also stated that he would suffer violence because he was from the Kalenij clan and in 2007 there had been post-election violence and his clan had been persecuted and as a result he was afraid to go anywhere in Kenya because of others such as Kikuyu. The Tribunal put to him that he had been to Nairobi before and he said he was staying at a friend’s house at that time and did not go around. When the Tribunal put to him that this was not in his statement he said the agent didn’t ask about these things and only asked about personal issues. When the Tribunal put to him that if he was afraid to return on this basis it would be something he should have disclosed, he stated he did not know who they were going to tell. He also stated the agent had misunderstood him and could not understand what he was saying in relation to the sale price of the land.

12.When asked why it took so long for him to apply for a protection visa he stated his former agent was a Kikuyu and he could not tell him his situation. When asked why he wouldn’t use someone else, he stated he was applying for a student visa and his former agent was the only one he knew at that time and he did not want to tell him his situation and had no idea about the protection visa. The Tribunal put to him that he said he fled to Australia and if he had feared returning then maybe he would have found out about the protection visa. He stated he was on a student visa and had no idea about the protection visa and had applied for another student visa. He stated when his student visa ran out, he found out about the protection visa. 

13.He stated his mother’s money was in fact his money from his land and his mother had it in her account. He also stated that there was conflict between his family and community.

14.He also stated that he suffered as a kid through family conflict.  He also stated that during the Departmental interview conducted over the telephone there was no privacy and he could not understand because the phone was not clear, he could not hear and it was not a conducive environment for conversation.

15.Following the hearing, the Tribunal sent the following:

At interview on 6 June 2018 between you and the Department of Immigration you are
orally recorded to have said that you obtained [amount] for the sale of the land in August 2012 and that no one took out a loan for you and no one sponsored you to come to Australia; you did it yourself. This is relevant because your answers at interview may be inconsistent with:
· the date you said you sold the land at hearing on 8 January 2019 and in your
statement (you said you sold it [in] July 2013),
· the amount of money you said you obtained when you sold the land in your
statement (you said you obtained [amount]), and
· your statement in your protection visa application that your mother sponsored
you to come to Australia and took out a loan to help you flee.
If the Tribunal finds that your answers at interview are different to your subsequent
answers then it may not accept you are credible. If it does not accept you are credible, then subject to your comments it would affirm the decision under review.

16.The applicant responded stating that on 6 June 2018 he was on pain reliever medication for a [medical condition] and was incarcerated at the time and jail was not condusive for his mental health. He also stated the following:

This letter will confirm to the comment and respond in 6 June 2018 I was on pain reliever medication from [medical condition] (gotten from been assaulted) and I was incarcerated at the time (stressful situation) Jail was not a conducive environment for mental health it was an experience I had never gone through. Hence the difference in the information, I was not in the right frame of mind. There was also a lot of miscommunication between me, immigration at the time and myself due to a language barrier and unhealthy environment.

Money [amount]

The immigration agent at the time mis-advise me to exaggerate the amount of money I received from the sale of the land as I provide the evidence of the amount of money for the land on 8 January 2019 if she had done her research she would have found that there is no [size deleted] property is worth [amount].

Loan discrepancy

The money Mum took it, it was not the loan. It was the rest of the money from the sale of land about [amount]. Again I was on pain reliever medication, first in jail my mental state/framework was not in the best condition for accurate recollection.

Immigration agent also failed to correctly do the exchange rate from Kenya shillings to Australian dollars. She drafted for me before forwarding it to the immigration department. I believe she took own liberties to approximate or write-up assumptions that were based off miscommunicated discussions between us.

Furthermore I have no personal inclination to withhold any information, unlike my representation who felt the need to exaggerate a threat that is very real and serious to me when your family threatens to kill you, then disowns and discards you it’s a wound that never heals. 

Country Information

17.According to DW, In Kenya, politics split on ethnic divide    (26 October 2017) accessed 22 January 2019:

Kenyan politics have been characterized by ethnic tensions since independence in 1963. But it was not until 2007 that the demons of tribalism really flared up after the hotly disputed national elections which left more than 1,000 people dead and thousands others internally displaced.
The clashes mainly between the larger ethnic tribes, the Kikuyus, Luos and Kalenjins, erupted after Mwai Kibaki from the Kikuyu community was declared the winner amidst accusations of rigging and electoral manipulation. Analysts such as Brian Wanyama say ethnicity per se has never been the problem. The dilemma arises when politicians use ethnicity for their personal gain and create a divide which breeds tribalism.

CRITERIA FOR A PROTECTION VISA

18.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.

19.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.

20.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 themself 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).

21.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.  

22.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

23.In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

24.The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five refugee reasons and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Kenya, there is a real risk that he will suffer significant harm.

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

26.The applicant has stated in his protection visa application that there was ongoing conflict between himself and his relatives as he sold land that he had inherited, that he received about [amount] for selling the land which was sold [in] July 2013, that after selling the land he was attacked by a group of people [in] August 2013 that were connected to his relatives, that his teeth were knocked out and he was taken to hospital. He also stated that he ran away to live with his friend until his Australian visa was processed and his mother was his sponsor at that time and took out a loan to help him flee.

27.However, at Departmental interview on 6 June 2018 the applicant stated that he said he obtained [amount] for selling land in August 2012, that no one took out a loan for him and no one sponsored him to come to Australia and that he paid for it himself.

28.The Tribunal finds that the applicant has provided inconsistent evidence in relation to the date he allegedly sold inherited land, inconsistent evidence in relation to the alleged amount of money he obtained when he sold the land, and inconsistent evidence in relation to whether his mother sponsored him to come to Australia and took out a loan to help him flee.

1. In addition, the Tribunal finds that even though the applicant stated at hearing that he had been assaulted twice, his statement only talks about him being assaulted once in 2013 even though he stated that in 2014 his life was in danger because he returned to El Doret to see his family who then assaulted him. When asked at hearing why he had not mentioned this in his written statement he stated he felt that it had nothing to do with his visa. The Tribunal does not accept that if the applicant’s life was in danger in 2014 because he returned to El Doret to see his family that he would not have included this incident in his protection visa application since this would be the most recent incident proceeding his departure from Kenya in 2014 and presumably of utmost importance in relation to why he fled.

2. The Tribunal finds that the inconsistencies and omissions in the applicant’s evidence is indicative of someone who is not recalling events that have actually occurred and does not accept that the applicant is credible. In reaching this conclusion the Tribunal has considered a contract between the applicant’s mother and [Mr A] which the applicant claims is evidence that his land was sold on his behalf by his mother in July 2013 however this document is irregular in the sense that the applicant who is supposedly the actual beneficiary of this document has also witnessed his mother’s signature. The Tribunal does not accept that this document is evidence that the applicant sold land [in] July 2013. The Tribunal also considered the applicant’s post hearing submission which was that his immigration agent told him to exaggerate the amount of money he received from the sale of the land, however this is inconsistent with what he said at hearing which was that he told the migration agent that he came to Australia with [amount] and that his agent had misunderstood him in relation to the sale price of the land.

3. The Tribunal finds that given the applicant’s lack of credibility, it does not accept that he has sold land and that as a result, he was attacked in either 2013 or 2014. In reaching this conclusion, the Tribunal does not accept that the applicant’s teeth have been damaged under the claimed circumstances or for the reasons claimed.

4. The Tribunal has also considered the applicant’s explanation that the amount left over from the land was put into his mother’s account but that money belonged to him however that alleged explanation continues to be inconsistent with his written statement which was that his mother took out a loan to help him flee.

1. While the applicant has also stated post hearing that he was on pain reliever medication and incarcerated which was not conducive for his mental health at the time of the Departmental interview and that there was a lot of miscommunication between he and the Department due to a language barrier and his unhealthy environment and because he could not hear, the Tribunal has listened to the Departmental interview which was conducted in English and finds that the applicant was articulate throughout the interview and presented at that stage as someone who was able to answer the Department’s questions spontaneously and clearly and the Tribunal does not accept that the inconsistencies or omissions in his evidence were because he was on pain reliever medication or because of his mental health or because of miscommunication.  

2. At hearing the applicant also stated that he would suffer violence if he returned to Kenya because his family had asked his mother for money and if he returned they may think he still had a lot of money however this was not in his protection visa application statement and the Tribunal finds this claim is of recent invention. Given his lack of credibility, the Tribunal does not accept it.  He also stated he fears harm because he was from the Kalenij clan however this was not in his statement either. When it was put to him at hearing that the claim that he was Kalenij was not in his statement, he stated that he was afraid to disclose it. When asked why he initially stated he did not know who they were going to tell, then stated his agent was kikuyu and when asked why he couldn’t use another agent, said that agent was the only one he knew and he had no idea about the protection visa and only found out about it after his student visa had ceased.

3. While the Tribunal accepts that there were clashes between Kikuyu and the Kalenjin in 2007, the applicant has not stated in his statement that this is a reason why he feared returning to Kenya and given his lack of credibility, the Tribunal does not accept that the applicant has been targeted in the past because he is Kalenijn or that there is a real chance of serious harm by Kikuyu in the future. Neither does the Tribunal accept that the applicant’s only option was to use a Kikuyu migration agent especially if he could not tell him about his real situation. Neither does the Tribunal accept that if the applicant fled Kenya that he would not have been able to find out about the protection visa. In reaching this conclusion the Tribunal considers that the applicant’s English language skills, intelligence and capacity to obtain migration advice and assistance would have meant that he would have been able to find another agent and information out about the protection visa if his claims were true.

4. In sum, the Tribunal does not accept that the applicant is credible or that his family have pursued and harmed the applicant or his mother in the past or that there is any past family conflict has occurred that has affected the applicant’s standing with the community. Neither does the Tribunal accept that there is a real chance that the applicant will face serious harm from his family or the community or any other ethnic group if he returns to Kenya.

5. 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).

6. 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).

7. The Tribunal has found that it does not accept that the applicant is credible and does not accept that he has suffered any past harm and finds that that there is no real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future. Therefore the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Kenya there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

8. 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

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

   Angela Cranston
   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …