1900635 (Refugee)

[2022] AATA 2448

1900635 (Refugee) [2022] AATA 2448 (1 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1900635

COUNTRY OF REFERENCE:                   Gambia

MEMBER:Paul Noonan

DATE:1 June 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 1 June 2022 at 2.38pm

CATCHWORDS

REFUGEE – Protection visa – Gambia – conversion to Christianity from Islam – converted three weeks before departure – attendance at Christian school as child – religious tolerance in Gambia – defection – poor economic condition – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994

CASES

MIAC v SZQRB [2013] FCAFC 33

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of The Gambia, applied for the visa on 15 May 2018. The delegate refused to grant the visa on the basis that the applicant’s claims were not credible. The delegate was satisfied that the applicant’s country of nationality is The Gambia and the Tribunal is also satisfied, on the basis of the biodata with respect to his Gambian passport, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claims with respect to The Gambia, as the country of reference or receiving country for the purposes of this appeal.

3. The applicant appeared before the Tribunal on 24 November 2021 to give evidence and present arguments by Microsoft Teams video. This hearing was scheduled remotely due to the ongoing effects of the COVID-19 pandemic. However, after speaking to the applicant and confirming his claims with him, the Tribunal decided it was appropriate to reschedule the matter to an in-person hearing on 15 December 2021 which the applicant also requested occur. The hearing proceeded on that date and the applicant appeared before the Tribunal and gave his evidence to the Tribunal in person. The applicant is unrepresented. The applicant did not request an interpreter and the hearings were conducted in English and the Tribunal was satisfied that the applicant could understand and communicate fluently in the English language.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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, to the extent that they are relevant to the decision under consideration. There are no country information reports prepared by DFAT with respect to The Gambia.

   PROCEDURAL HISTORY

10. On 8 March 2018 the applicant was granted a Temporary Activity (Australian Government Endorsed Events) (GG408) visa. On 25 March 2018 the applicant arrived in Australia to attend the Commonwealth Games [for] The Gambian national team. He then proceeded to apply for protection on 15 May 2018.

11. In applying to the Tribunal for review of the delegate’s decision the applicant has supplied the Tribunal with a copy of the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant has made the following pertinent disclosures with respect to his background and profile. He was born on [date]. His name was [deleted], however, he changed his given name to [applicant name] when he converted from Islam to Christianity. He was born in [The] Gambia. He disclosed that he speaks, reads and writes Wolof and English. He worked as a [teacher] in The Gambia. He has not married or had children.  

13. In his written claims for protection the applicant made the following claims with respect to fearing persecution should he be required to return to The Gambia as follows:

    ·He fears persecution from his family and other members of the Muslim community and his former employer because he converted from Islam to Christianity.

    ·He fears persecution from The Gambian government because of his decision to leave the Gambian national team at the Commonwealth Games.

14. The delegate noted that the applicant stated that he had converted to Christianity three weeks before coming to Australia. The delegate found the applicant’s explanation for this timing and his motivation for undertaking the conversion process to be vague and unconvincing. Overall, the delegate found his claims of conversion to not be credible. The delegate also assessed the applicant’s claims to fear harm from The Gambian government because of his leaving the athletics team and seeking asylum against country information and found that there is no real chance the applicant would suffer serious harm for these reasons if he returns to The Gambia. For the following reasons the Tribunal has decided to affirm the delegate’s decision.

    The applicant’s religious conversion

15. The applicant stated that he worked as a Teacher in The Gambia and was working at a non-religious high school. He confirmed that since deciding to stay in Australia he has had no communication with his former employer.

16. The applicant stated that as a child he was a good athlete and so was sponsored by the Church to attend a Christian school.

17. The applicant stated that his mother has passed away and his father is [age] and unwell. He has had a stroke and has suffered partial paralysis. He has two brothers. One is in [Country 1] and the other is in The Gambia and that brother has never worked. The family survives on repatriation money from his sibling in [Country 1]. He has never sent money back himself. He does talk to his family sometimes in The Gambia, generally to his sisters and sometimes to his brother. They talk on friendly terms to him. His father also has a brother in The Gambia who is [age] and he does not have any communication with him because he doesn’t want any hassle from him because of his conversion to Christianity. When asked who he fears harm from for this reason the applicant stated he fears harm from his family and the community.

18. The Tribunal put to the applicant that the delegate had found that he went to a Christian school and then had many years in The Gambia and did not convert until just prior to his travel to Australia and that this timing may indicate an action undertaken purely for the purposes of strengthening his refugee claims. The Tribunal asked him why he converted just prior to leaving for Australia. The applicant stated that it was in his mind but he did not do so because of pressure from his family. He only converted when he knew he was going to the Commonwealth Games. The Tribunal noted that he had attended a Christian school which may indicate his parents agreed that he attend this school which may indicate they are not anti-Christian. The applicant stated it was his own decision to attend the school. The Tribunal noted that this may indicate that he is not beholden to his father or family’s views and that he makes his own decisions. The applicant agreed that he is and has always been in charge of his own life. The Tribunal noted that his father is very old and unwell and his uncle is getting on and that he is a young strong man and this may indicate there would not be a real chance of serious harm to him from these sources. The applicant disagreed and noted that he has another brother who had converted in [another country] and then returned to The Gambia but had not gone near his father for fear of harm. The Tribunal noted that this may indicate that he would not be in any danger from the general community as his brother was able to travel back after converting with no harm. The applicant then suggested this was because his brother was raised by white people and was raised under sponsorship in [that country] and came back on a holiday with the white people.

19. When asked how often he attends church the applicant stated that he is not a regular worshipper and has not attended for many months. The Tribunal put to the applicant that he is not an active worshipper and that he may be unlikely to come to any adverse attention in The Gambia as he is not an active worshipper. The applicant then stated that he does not attend because he feels uncomfortable as a black person. He did attend a church in [a location] but felt he was unwelcome for reason of his skin colour. When asked by the Tribunal what denomination the church was the applicant stated it is Catholic. He stated that he has talked to a priest once in [Suburb 1] when he first arrived in Melbourne and lived with a Catholic family in [Suburb 1]. The Tribunal has reservations about the genuineness of the applicant’s conversion and adherence and belief in Christianity but is nevertheless prepared to accept he identifies with the Christian faith given his accepted long attendance at a Christian school in The Gambia as a child.

20. The Tribunal discussed the following country information with the applicant. The 2020 Report on International Religious Freedom produced by the United States Department of State reports that: ‘intermarriage between Muslims and Christians continued to be common. However, due to cultural and gender norms, women were generally required to convert to their husband’s religion and raise all children in the husband’s religion. It was not uncommon for persons of different faiths to live in the same dwelling, and observers said religious differences were widely accepted among family members and neighbors, with each jointly celebrating the religious events and holidays of the other’.[1]

    [1] Gambia - United States Department of State

21. Further that: ‘the law does not require public or private schools to include religious instruction in their curricula. The government, through the Ministry of Basic and Secondary Education, provides religious education teachers to public schools to teach an academic course on major world religions. The majority of public schools offer this course, and most students take the class. Some private schools also offer classes in religious education and tolerance and provide an overview of major world religions. The constitution bans political parties organized on the basis of religion’.

22. Further that the President of The Gambia is reported as appearing on television regularly to stress the government’s commitment to upholding religious tolerance in the country. Further that there are no recent reports emanating from the country that set out any religious based violence in the country. The Tribunal noted that these reports reflect that there is a significant level of religious tolerance in The Gambia and as such there would be unlikely to be any adverse interest in the applicant’s religious status.

23. The applicant submitted that this is incorrect and there is violence there because of election tensions. Unless you go there you will not know what is going on there. The Tribunal set out its obligation to have regard to relevant country information and its view that this may reflect religious tolerance is prevalent in The Gambia which reflects there would be no adverse interest in him because of his religious conversion. The applicant did not respond to this concern and just stated that some people are doing well and some not well under the current leader. With respect to his family in The Gambia the applicant stated that he has no contact with them.

24. After taking evidence from the applicant with respect to this claim and discussing this country information the Tribunal is satisfied that there is no real chance of serious harm to the applicant for reason of his religious conversion should he be required to return to The Gambia. This is because the Tribunal simply does not accept as reasonably plausible that the applicant’s family or community harbour any adverse intent with respect to the applicant’s religious choices when he was able to attend a Christian school for many years. This apparent benign attitude is entirely in line with the country information that sets out widespread religious tolerance and acceptance of different religions within communities and immediate families. Further, by his own evidence, the applicant has another brother who also converted and returned to The Gambia without harm.

25. The Tribunal notes that the applicant submitted text messages from a friend in The Gambia purporting to recount aggressive statements against the applicant by his father after the applicant left the Gambia. However, as noted at hearing, his father is very old and very unwell and infirm. The Tribunal does not accept as plausible that, in such circumstances and even if the Tribunal gave weight to this communication, that the applicant’s father would be capable of or seek to harm the applicant for reason of the applicant’s choice of religion. In addition, until this hearing, the applicant has also only raised fears with respect to his father’s objection to his claimed conversion. The Tribunal rejects the applicant’s new claim that he also fears harm from his uncle as he has never raised this concern prior to the hearing and only did so when the age and state of health of his father was raised by the Tribunal. The Tribunal would expect a consistent recounting of family members that he fears harm from should threats have ever been issued by someone such as his Uncle.

26. There is also no basis to the claim that the applicant fears harm from his former employer, being a school, for reason of his claimed conversion. The applicant clarified that he did not fear harm from his former employer, rather he feared harm as he would find it difficult to get a job back with his former employer or any other job due to his defection from the Commonwealth Games team and the government’s actions against him.

27. The Tribunal is satisfied that there is no real chance of serious harm from the applicant’s father, his Uncle, the general community, his employer or anyone else for reason of his conversion to Christianity either now or in the reasonably foreseeable future should he be required to return to The Gambia.

    The applicant’s defection from The Gambian Commonwealth Games team.

28. The Tribunal discussed the following country information with the applicant from the United States Department of State Human Rights Report which assesses that there are no significant human rights violations recorded by the government and the constitution provides for human rights and there were no reports of arbitrary arrest. That the fundamental freedoms have improved under the Barrow government. Further the constitution provides for an independent judiciary and the government generally respected judicial independence and impartiality. The law provides for the right to a fair and public trial and an independent judiciary generally enforced this right and due process is followed. The High Court hears civil and human rights cases. Individuals may also seek assistance concerning violations of human rights law from the Office of the Ombudsman, which has a mandate to investigate such cases and recommend remedies for judicial consideration. Individuals and organisations may appeal adverse domestic decisions to regional human rights bodies. There were no reports of the authorities failing to respect the privacy rights of individuals. There were no restrictions on academic freedom, freedom of expression and no censorship practised by the government. The law provides for the freedoms of peaceful assembly and association, and the government generally respected the right of peaceful association. Nevertheless, there were restrictions placed on the rights of peaceful assembly and gaol conditions are poor.[2] The Tribunal has had regard to the press report that the Minister responsible was embarrassed by the defections at the Commonwealth Games,[3] but noted to the applicant that no threats were stated in this article and that there is a new government in place since then.

    [2] Gambia - United States Department of State

    [3] ‘The Gambia launches probe over missing athletes’, CGTN [China Global Television Network], 27 April 2018.

29. The Tribunal discussed with the applicant that this country information may reflect significant human rights considerations are respected by the authorities and that these general conditions reflect that the current authorities would not seek to persecute him for reason of him leaving the Commonwealth Games team. The applicant reiterated his belief that he will be harmed.

30. After carefully considering the country information about the current government and its clear respect for due process and human rights the Tribunal is satisfied that there is not a real chance that the applicant will suffer serious harm, including a denial of capacity to earn a livelihood where the denial threatens a person’s capacity to subsist, for reason of his defection from The Gambian Commonwealth Games team during the time of a previous government, from the authorities or anyone else either now or in the reasonably foreseeable future should he be required to return to The Gambia. 

    Complementary protection

1. The Tribunal has also considered whether the applicant meets the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

2. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicant faces serious harm if he returns to The Gambia. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that 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 The Gambia, there is a real risk that the applicant will suffer significant harm for reason of his religious conversion or his defection from The Gambian Commonwealth Games team.

3. The applicant also raised that it may be difficult for him to obtain a job in The Gambia. The applicant primarily raised this within the context of his concerns about his defection, however, also mentioned during the hearing that he believed the economy was in poor condition making it hard to find a job. The Tribunal discussed with the applicant that s 36(2B) states that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population generally and is not faced by him personally. The applicant only reiterated his concerns with respect to the authorities and his defection and did not set out any other concerns or reasons as to why this would be a risk faced by him personally as opposed to one faced by the general population. The Tribunal finds that the applicant’s stated claim about the poor state of the economy falls within the exception at s 36(2B).

   Overall conclusions

4. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

5. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

6. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   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.

   …