1822411 (Refugee)

[2024] AATA 4356

1822411 (Refugee) [2024] AATA 4356 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1822411

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:30 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2024 at 6:08pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – political opinion – opposition to the government – corruption – bribes to employer for work – threats of physical assault – avoiding military service – child‘s special health and educational needs – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 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 dependants.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is [age] years of age and a national of Vietnam. He arrived in Australia [in] March 2017 on a Visitor visa. He became unlawful [in] June 2017 and lodged a Protection visa on 3 January 2018.

2. On 30 July 2018, a delegate of the Minister for Home Affairs refused to grant the first applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. In his protection visa application, the applicant provided a single address in Thua Thien, Hue Province where he said he lived from birth until 2017 when he travelled to Australia. He listed his family members as his parents and [number] siblings. He stated that he completed High School in [specified year] and lists his only employment in Vietnam as [an occupation 1] from 2015 to 2017.

4. Regarding his protection claims, he said that he left Vietnam because he was opposed to the Communist Party regime and the local Government. He said that he was ‘ignored, watched and followed’ before leaving Vietnam. He was unable to relocate and the authorities will not protect him. On return he claimed he will be ‘ignored, watched and followed’ and it will be difficult to find employment.

   The delegate’s decision

5. A delegate of the Minister refused the Protection visa application. The delegate was not satisfied that the applicant is a refugee as defined by s5H(1) and a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vietnam, there is a real risk he will suffer significant harm. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations under s36(2)(aa) of the Act.

   The review application

6. The applicant applied for a review of the delegate’s decision on 3 August 2018 and provided a copy of the delegate’s decision record to the Tribunal.

7. The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

8. On 10 May 2024, the following post-hearing documents were provided by the applicant in support of his daughter’s medical conditions and education requirements:

   -Medical report of [Doctor A], Consultant Paediatrician, dated 2 May 2024.

   -[Hospital] outpatient document of [Doctor B], Paediatrician, dated 26 April 2024.

   -Letter from [a named] Speech Pathologist, [Health Service 1], dated 8 May 2024.

   -Letter from [a named] Kindergarten, dated 29 April 2024.

   CRITERIA FOR A PROTECTION VISA

   The relevant law

9. 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.

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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, reasons and findings

15. For the following reasons, the Tribunal has decided to affirm the decision under review.

    Political opinion and corruption

16. The applicant claimed in his protection visa application that he will be harmed on return to Vietnam because he is opposed to the Communist Party Vietnam and that he will be ‘ignored, watched and followed.’ At hearing, he said that his political opinions are against corruption.

17. The applicant gave evidence that he previously experienced corruption in the local government in Vietnam who operated the [business 1] where he worked. He said he worked as [an occupation 1] for [number] years after he completed High School [between specified years]. He gave evidence that he was asked to pay bribes and that he was intimidated by his employer. He said that his employer threatened that he would be hit or beaten if he did not pay the bribes. The applicant said that he paid the bribes for the first 2 years and then he refused to pay. The Tribunal raised with the applicant that his evidence that he was threatened with harm by his employer does not accord with his evidence that he was able to continue working for a further [number] years after he stopped paying the bribes. The applicant responded that he had come to know his superior/boss by that time and gave him some presents occasionally. The applicant said that he ceased work with the [business 1] in 2015 and that for the next 2 years he worked in his brother’s [business]. During this time he continued to live at the same family home with his siblings.

18. The Tribunal accepts the applicant’s evidence that he was employed as [an occupation 1] in Vietnam [between specified years] for a public authority. The Tribunal is also willing to accept that he was asked to pay money to his superior/ boss and that he paid the money for a period of 2 years [between specified years] and some occasional gifts over the period to 2015. However, the Tribunal does not accept as believable that the applicant was threatened with harm by his employer or government authorities. His evidence that he was threatened with harm was vague and lacked meaningful detail. The Tribunal also does not consider it plausible or believable that the applicant was able to stop making the payments after 2 years and continue working for the same [business 1] for another [number] years if he was being threatened.  When he ceased work in 2015, he also said that he continued living at his family home with his siblings from 2015 to 2017 before travelling to Australia but did not suggest, and the Tribunal does not accept, that he was targeted for harm by his employer or government authorities once he ceased employment in 2015. The applicant also did not give evidence to suggest and the Tribunal also does not accept that he was ‘watched and followed’ as suggested in his protection visa application. The Tribunal also notes that the applicant has not been in Vietnam since 2017 and has not been employed by the [business 1] since 2015.  The applicant further said that he has not been involved in any anti-government activities where he has expressed political opinions against the Communist Party Vietnam or corruption in Vietnam.

19. The Tribunal discussed with the applicant that according to country information, public administration corruption remains widespread in Vietnam but it suggests there has been improvement with the Corruption Perceptions Index which ranked Vietnam 104 out of 180 countries in Transparency International’s 2020 Corruption Perceptions Index,[1] and more recent reports show improvement with Vietnam ranking 83 out of 180 countries in 2023. [2] DFAT also notes that there was a large anti-corruption campaign in 2017 and 2018 which saw thousands of investigations and prosecutions that included senior government officials and senior business leaders.[3] The Tribunal asked the applicant if he wanted to comment and he did not.

    [1] DFAT Country Information Report Vietnam, 11 January 2022 at 2.10.

    [2] 2023 Corruption Perceptions Index, Transparency International.

    [3] DFAT Country Information Report Vietnam, 11 January 2022 at

20. Based on the available evidence, the Tribunal does not accept that the applicant would be of adverse interest to his previous employer at the [business 1] or the public government authorities associated with the [business 1], or the Vietnamese Government generally, for reason of his political views against the Communist party government and corruption in Vietnam, on return to Vietnam now or in the foreseeable future. Therefore, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant’s political opinions against the Communist Party Vietnam and corruption.

    Military service

21. The applicant raised at hearing that he had paid a bribe to the Vietnamese authorities to avoid compulsory military service in approximately 2015.

22. According to DFAT, Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including paying bribes. If avoidance is detected and prosecuted, they may face a fine or a prison term, especially for repeat offenders. Desertion is a criminal offence that can carry penalties including community service or up to 12 years prison, the latter only applying to serious offences such as desertion in war time or leaking Government secrets.[4]

    [4] DFAT Country Information Report Vietnam, 11 January 2022 at 3.110.

23. The Tribunal accepts that the applicant paid a bribe to avoid military service. The Tribunal discussed the country information with the applicant that military service is compulsory and avoidance is an offence. The applicant gave evidence that he will not face any consequences because he paid the money not to complete the service. This is consistent with the fact that he said he was able to obtain a passport and depart Australia without any issues arising with the authorities. The applicant is also now aged [age] years and outside the age of conscription. Based on the available evidence and the country information, the Tribunal finds that there is no real chance or real risk that the applicant would come to the adverse attention of the authorities for reason of his failure to complete military service or payment of a bribe. Therefore, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm faced by the applicant on return to Vietnam now or in the foreseeable future for reason of him having avoided completion of compulsory military service or paying a bribe to authorities.

    Financial circumstances

24. The applicant claimed that it will be difficult to find employment on return to Vietnam. He also said that he wants to work in Australia so he can pay the costs of treatment for his child.

25. In his visa application, the applicant stated that he completed High School in Vietnam in [year]. At hearing the applicant gave evidence that he was employed for [number] years as [an occupation 1] in Vietnam from [year] to 2015 and that for the 2 years prior to travelling to Australia he was able to work with his brother in his [business]. The applicant also gave evidence that [another] brother in Vietnam has his own [specified] business. He said that on return to Vietnam he would live in his previous family home with his [specified family members].  The Tribunal also notes the applicant gave evidence that he has been employed in [specified] work in Australia over the last 5 years.

26. Based on the evidence provided, the Tribunal considers that the applicant’s background, skills and experience are such that he will be able to find employment on return to Vietnam, that he will have the support of his 2 brothers in Vietnam and accommodation at the family home. Therefore, the Tribunal finds that the applicant will not face a real chance of serious harm or a real risk of significant harm for reason of his financial circumstances on return to Vietnam now or in the foreseeable future.

    Health and education of child

27. The applicant claimed at hearing that he wants to stay in Australia to earn money for the treatment of his daughter who suffers from developmental issues. He said that he does not want her to return to Vietnam because the services are much better in Australia.

28. The applicant’s child was born in Australia and is [age] years of the age. The applicant is her father and the applicant is a national of Vietnam by descent.

29. The Tribunal received supporting medical reports post-hearing and accepts that the child has been diagnosed with Autism Spectrum Disorder (Level 2), Developmental Delay and speech impairment. The Tribunal accepts that the second applicant is under the treatment of a paediatrician and receives speech pathology support. The child’s kindergarten teacher states that she will also require educational support as she transitions to school.

30. Regarding mental healthcare in Vietnam, DFAT provides as follows:

    ‘Mental healthcare is available at different levels including at national, provincial and commune hospitals and clinics. About half of the provinces have a mental health facility at the main hospital. There are three national mental health hospitals in Hanoi and HCMC. Medication for mental health conditions is provided at provincial, national and some district hospitals. Hospitals provide inpatient and outpatient services and, once a patient becomes stable, they may be referred to outpatient services at the commune level.’ …

    Costs may be a barrier to mental healthcare, especially for the very poor or those with complex needs. Basic treatment and basic medications are covered by social health insurance. In-country experts told DFAT that out-of-pocket cost for medication is low and affordable to most people. Distance can also be a significant barrier to treatment.[5] 

    Regarding education in Vietnam, DFAT provides: ‘Vietnam has a strong cultural commitment to education reflected in high levels of school enrolment. Schools are administered by provincial governments and almost all students attend public schools. Education is free and compulsory up to age 14.’ [6]

    Recent country information sources also report as to the increased awareness of autism and developmental conditions in Vietnam and there are initiatives coordinating specialist treatment services. There are also reports of specialist training being provided for educational providers.[7]

    [5] DFAT Country Information Report Vietnam, 11 January 2022 at 2.19.

    [6] DFAT Country Information Report Vietnam, 11 January 2022 at 2.16.

    [7] See: Entities, individuals working in autism come together in alliance (vietnamnews.vn) 7 April 2021; 'Understanding Autism' programme offers expert training for Việt Nam special educators (vietnamnews.vn) 5 April 2024; Special Em's Education Center is now Vietnam's first Certified Autism Center™ (ibcces.org) ; Special Needs Education Programme - Saigon Children’s Charity CIO

31. The Tribunal accepts that the child applicant has special health and educational needs owing to her diagnosis of developmental delay, speech impairment and autism spectrum disorder. While the Tribunal is willing to accept that there may be a higher standard of services available in Australia than in Vietnam, and that the applicant would prefer his daughter receive support in Australia, the Tribunal finds that the applicant’s daughter will not be denied access to relevant medical treatment and specialist educational services for persons with autism, developmental delay or speech impairments on return to Vietnam.

32. The Tribunal recognises that any out-of-pocket costs associated with mental healthcare and specialist education in Vietnam will impact on the applicant’s financial circumstances on return to Vietnam, however, as noted above, the Tribunal has found that the applicant’s background, skills and experience will enable him to find work on return to Vietnam and that he will also have the support of his brothers in Vietnam.

33. For the above reasons, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicant for reason of his daughter’s health conditions and education requirements, on return to Vietnam, now or in the foreseeable future.

    Conclusions

34. On the basis of the evidence before me, the Tribunal does not accept that there is a real chance that the applicant would be persecuted for the reason of his race, religion, nationality, political opinion, or membership of any particular social group if he were to return to Vietnam. Therefore, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the purposes of s5J of the Act.  The Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and therefore that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. 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). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

2. 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

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

   Melissa Haag

   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.

   …