1905331 (Refugee)

[2024] AATA 2091

1905331 (Refugee) [2024] AATA 2091 (4 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905331

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Suseela Durvasula

DATE:4 March 2024   

PLACE OF DECISION:  Sydney

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

Statement made on 04 March 2024 at 12:18pm

CATCHWORDS
REFUGEE – protection visa – Fiji – nepotism – denial of study scholarship – no evidence of nepotism – mother’s resignation from government employment – economic stress – applicant educated and qualified – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 February 2019 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 Fiji, applied for the visa on 29 August 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia has protection obligations.

3. The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments.

   Background

4. The applicant is a [age]-year-old female Fijian national who was born in Suva, Fiji. She is iTaukei (Indigenous Fijian).

5. In her protection visa application, she states she was never married. Her mother lives in Fiji. Her parents are divorced. She has an aunt and uncle who live in Australia who are Australian residents

6. At the hearing, the applicant told the Tribunal that her mother is currently in Australia. She applied for a protection visa which was refused and the matter is currently before the Administrative Appeals Tribunal (differently constituted).

7. Her brother lives in Fiji, along with her extended family (her mother’s brother’s wives and her cousins). Her brother works [an] organisation and lives with her extended family in a house owned by the family. She has had no contact with her father or his family, as her parents separated when she was young. In Fiji, the applicant lived in Suva in a suburban area.

8. The applicant first entered Australia [in] February 2013 as a student visa holder. Between 2013 and 2017 she travelled out of Australia multiple times. She last entered Australia [in] January 2018 on a student visa and lodged the protection visa application on 29 August 2018. 

9. In relation to her education, the applicant completed high school in Fiji. At the time of the visa application, she was studying a Bachelor of [Subject 1] and a Bachelor of [Subject 2] in Australia. After lodging the review application, the applicant provided evidence that she completed this course in 2021.

10. The applicant did not work in Fiji. She was employed as [an occupation] in Australia from September 2014 to April 2017.

11. At the hearing, the applicant told the Tribunal that her degrees in Australia took longer to complete due to financial constraints. She took a gap year and worked in [work area] as she needed a break. Since completing her course, she has been working to pay off her debts and applying for graduate programs as an [Occupation 1]. She eventually found a job as an [Occupation 1] in June 2021 and is studying to complete her [Occupation 1] qualifications.

12. In her protection visa application, the applicant states that she left Fiji to get a higher education. After being accepted by [named] University, she sought financial assistance through overseas scholarship schemes, but was unsuccessful. She sought assistance from the Fijian Affairs Board which was responsible for overseeing the educational interests of Indigenous Fijian scholars. This was also unsuccessful as she was advised that her study area was not in the sponsored programs for overseas studies. She claims that this was her first direct experience of nepotism, based on personal agendas, political motives and personal connections, rather than merit. To financially support her studies, her mother sold their property. While the applicant was studying, her mother resigned from her job on 3 February 2017 due to an unhealthy work environment and job insecurity. The applicant had to take on more financial obligations.

13. The applicant states that the harm she experienced was ‘emotional distress’ and ‘victimisation’ due to her mother’s employment experience and resignation. If she returns to Fiji, she believes she would experience ‘networking hardships’ as she left Fiji after high school and has been in Australia since 2013 and her sense of home has been displaced. Based on her mother’s experience, anyone who disagrees with higher government authority decisions faces job insecurities.

14. With her protection visa application, the applicant provided:

    ·     a letter of promotion, dated [May] 2014, from [a government agency], stating that the applicant’s mother had been [promoted] ;

    ·     a letter acknowledging the applicant’s mother’s resignation from the above position, dated [January] 2017

    ·     evidence of the applicant’s employment in Australia; and

    ·     a copy of her student card in Australia.

15. After lodging the review application the applicant provided:

    ·     evidence that she had completed her studies at [named] University in 2021 and the degrees were conferred in 2022;

    ·     reference for the applicant stating that she had been [named position] for NSW [sports club] since 2022; and

    ·     employment reference for her current job, stating she has been employed as a graduate [Occupation 1] since 1 June 2012 and is currently undertaking her [Occupation 1] qualifications.

    CRITERIA FOR A PROTECTION VISA

16. 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.

17. 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.

18. 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).

19. 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.

20. 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

21. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issues in this case are whether there is a real chance, if the applicant returns to Fiji, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion. If not, the Tribunal must decide whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

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

    Country of nationality

24. The applicant has provided a copy of her passport to the Department and the Tribunal, which shows she is a Fijian citizen. The Tribunal finds, based on the applicant’s passport, that she is a national of Fiji and has assessed her claims on this basis.

    Denial of study scholarship

25. In her protection visa application, the applicant claims that she experienced ‘nepotism, based on personal agendas, political motives and personal connections, rather than merit’ when she tried to apply for a study scholarship and was unsuccessful. At the hearing, the Tribunal asked the applicant if she could provide more specific detail about her claim that she experienced nepotism. The Tribunal noted that, based on the information in her application, she may not have been granted a scholarship because her area of proposed study did not meet the guidelines for a scholarship. The applicant stated that she does not have any specific evidence of nepotism.

26. Based on the evidence before the Tribunal, the Tribunal finds the applicant was not granted a scholarship because her proposed area of study did not meet the guidelines for a scholarship. Based on the lack of detail in the applicant’s claims, and the fact that she could not provide any specific evidence of nepotism, the Tribunal does not accept that the applicant being refused a scholarship in Fiji, demonstrates that she experienced nepotism or any harm. The Tribunal is not satisfied there is a real chance of persecution involving serious harm, due to the applicant being refused a study scholarship.

    Mother’s previous employment

27. The applicant claims in her protection visa application that she experienced harm in the form of ‘emotional distress’ and ‘victimisation’ due to her mother’s employment experience and resignation. At the hearing, the applicant stated that from 2014 to 2017, her mother worked for the [named government agency]. She found the work frustrating as she would propose new projects and they would get cancelled. She became stressed and frustrated about her work as she did not always agree with the decisions made by her employer. Her mother eventually resigned in 2017.

28. The Tribunal asked the applicant how her mother’s experiences impacted her. The applicant stated that she was in Australia on a student visa at the time. She worried about her mother and the impact on her heath. Her mother eventually came to Australia in 2018 to support the applicant.

29. The Tribunal accepts that the applicant was worried about her mother’s job situation and the impact on her mother’s health. However, based on the applicant’s evidence about her mother’s employment situation in Fiji, the Tribunal is not satisfied this gives rise to a fear of serious harm experienced by the applicant. The applicant was in Australia when her mother was working and was not directly impacted. The applicant stated that her mother resigned due to a disagreement with her employers about priorities and approaches, which can occur in many employment situations. For these reasons, the Tribunal is not satisfied there is a real chance of persecution involving serious harm to the applicant due to her mother’s previous employment.

    Claims of economic harm

30. At the hearing, when asked why she left Fiji and why she does not want to return, the applicant stated that it was mainly for economic reasons and lack of job opportunities. There is a lot of economic stress in Fiji and a lower quality of life. She speaks to many people who are thinking of leaving the country or have left. The wages are low (about FJD $2/hour) and are not enough to meet the high costs of living.

31. When asked if she had any specific fear of returning to Fiji, the applicant stated it will be difficult for her to find a job in Fiji. She has not researched any job opportunities in Fiji, but she has spoken to people who have gone overseas due to the situation. The Tribunal put to the applicant that she appeared to be speaking in general terms, and asked if there was anything specific to her circumstances that she feared. The applicant said she was not really sure, as she has not been home for the last 5 years. She has based this view on conversations she has had with people who were trying to get out of Fiji.

32. The Tribunal put to the applicant that she was a qualified [Occupation 1] with work experience and she may be able find work in Fiji. The applicant responded that the work environment is very different in Fiji and not conducive to learning. Her bosses here are very supportive towards her career progression.

33. The Tribunal discussed with the applicant, country information from DFAT which indicates that the World Bank defines Fiji as an upper-middle income country and is one of the largest economies in the Pacific region. Its per-capita gross domestic product is much higher than most of its Pacific neighbours.[1] The applicant stated that talking to family and friends, the cost of living is high compared to the wages received.

    [1] DFAT Country Information Report Fiji (May 2022) at 2.7

34. At the hearing, the Tribunal explained the concepts of persecution, serious harm and significant harm to the applicant. The Tribunal discussed with the applicant that, while it had not formed a definite view, it may find, based on her evidence about her circumstances, that she may not meet the definition of serious or significant harm. Given her education and work experience, the Tribunal may not accept that she would be subject to significant economic hardship to a level that would threaten her capacity to subsist, or that she would be denied the opportunity to earn a livelihood of any kind that would threaten her capacity to subsist.

35. The applicant responded that there is economic hardship in Fiji, which is why everyone is leaving the country and people cannot make ends meet. The Tribunal explained to the applicant that it needed to consider her specific circumstances. The applicant stated there is no room for career growth in Fiji.

36. The Tribunal also put to the applicant that the claimed economic harm she fears may not be for reasons of her race, religion, nationality, membership of a particular social group or political opinion. It may arise because of the general different economic circumstances between Australia and Fiji. The applicant responded that there are many economic challenges that lie ahead for Fiji.

    Findings on economic harm claims

37. The applicant has claimed that if she returned to Fiji, she would experience economic hardship and a lack of career opportunities. She claims she would it find it hard to fit in due to ‘networking hardships’ and being in Australia for many years. The Tribunal accepts that the applicant would not be able earn the same level of income in Fiji as she does in Australia and her standard of living and employment conditions may be lower. The Tribunal has had regard to the DFAT country information report referred to above and the 2022 US State Department Report, which states that the minimum wage did not typically provide a decent standard of living for a worker and family. [2] The same DFAT report also states, however that the Fiji economy is growing and Fiji is now an upper-middle income country.

    [2] United States Department of State, 2022 Country Reports on Human Rights Practices: Fiji accessed 23 February 2022; DFAT report at 2.19

38. The Tribunal is satisfied, that given the applicant’s particular circumstances, she would be able to find a suitable job in Fiji to support herself. She is educated and has qualifications and experience as an [Occupation 1]. She has also had other work experience in [work area]. The Tribunal accepts that it may take time for the applicant to re-adjust to life in Fiji and establish contacts. The Tribunal is satisfied, however that she would have somewhere to live in Fiji, as her brother lives in Suva with his extended family, in a house owned by the family.

39. As discussed with the applicant at the hearing, while serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The applicant’s evidence about the claimed economic harm she would experience is general and anecdotal, and not based on her specific circumstances. The Tribunal is not satisfied that if the applicant returned to Fiji, she would experience significant economic hardship or be denied of capacity to earn a livelihood, such that it would threaten her capacity to subsist, within the meaning of s 5J(5)(d) or s 5J(5)(f) of the Act. While the applicant’s financial circumstances and standard of living may not be the same in Fiji as they are in Australia, the Tribunal is not satisfied that this amounts to serious harm.

40. Noting that what constitutes serious harm is not limited to the examples in s 5J(5), the Tribunal is not satisfied the applicant fears serious harm, having considered the evidence as a whole. Therefore, the applicant does not meet s 5J(4)(b) of the Act.

41. For these reasons, the Tribunal is not satisfied that there is a real chance the applicant will face serious harm if she returns to Fiji, now or in the reasonably foreseeable future. In addition, the Tribunal finds the claimed economic harm feared by the applicant is not for reasons of her race, religion, nationality, membership of a particular social group or political opinion and she does not meet s 5J(1)(a) of the Act.

    Overall assessment

42. The Tribunal has considered the applicant’s claims individually and cumulatively. Having considered the evidence as a whole, the Tribunal is not satisfied that if the applicant returns to Fiji, now or in the foreseeable future, she faces a real chance of serious harm.

43. Accordingly, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act. Therefore, the Tribunal is not satisfied the applicant meets the definition of refugee in s 5H(1) of the Act.

    Complementary protection

44. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk she will suffer significant harm (s 36(2)(aa) of the Act).

1. The Tribunal takes into account the above findings of fact in relation to the ‘real chance’ test and its view of the applicant’s future conduct and circumstances if she were removed from Australia to Fiji. The Tribunal is satisfied the applicant would be able to find accommodation in Suva and find a job, based on her qualifications and experience in [Subject 2]. Her brother and extended family live in Suva in a house owned by the family. While her financial circumstances and standard of living may not be the same as in Australia, the Tribunal is not satisfied that this amounts to significant harm, as that term is defined in s 36(2A). The Tribunal is not satisfied there is a real risk that the applicant will experience significant harm as defined in s 36(2A) of the Act.

2. The Tribunal is not satisfied, on the evidence, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under s 36(2)(aa) of the Act.

   CONCLUSIONS

3. 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).

4. 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).

5. 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

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

   Suseela Durvasula
   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.

   …