1905642 (Refugee)

[2024] AATA 4169

1905642 (Refugee) [2024] AATA 4169 (4 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1905642

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Xanthe Emery

DATE:4 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2024 at 1:11pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – father’s unpaid debts to loan sharks – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424A
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 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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Malaysia. She was born in [year] and lived in [Suburb 1], in [City 1], Penang, Malaysia, before travelling to Australia on an Electronic Travel Authority [in] July 2018. Her mother and [siblings] reside in Malaysia.

3. The applicant applied for a Protection (Subclass 866) visa on 30 October 2018. On 25 February 2019 the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.

4. The applicant applied for review of the delegate’s decision on 11 March 2019.

5. The applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from her father, [Mr A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages, although the applicant elected to communicate primarily in English.

6. On 20 March 2024, the applicant’s father’s review application, case number 2004025, was constituted to me. [Mr A] appeared before me to give evidence and present arguments on 24 April 2024 and 24 May 2024. The applicant did not appear as a witness at his hearing. On 5 August 2024, the Tribunal affirmed the decision not to grant [Mr A] a protection visa.

7. The applicant’s claims to be owed protection are premised upon her father’s debts to loan sharks. In summary, she claims she is at risk of harm in Malaysia because of her father’s unpaid debts. She claims that the loan sharks harassed her and her family in Malaysia, threatened to kidnap her for the purpose of selling her in Thailand, and that they continue to seek her whereabouts.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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.

12. 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

13. 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 (‘the Department’), 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

    Evidence before the Department of Home Affairs

14. As stated above, the applicant applied for a Protection (Subclass 866) visa on 30 October 2018. The Department file before me also relevantly includes a copy of the applicant’s birth certificate, her Malaysian national identity card, and the biodata page of her Malaysian passport.

15. In her visa application, the applicant claimed her father borrowed money from an illegal gangster money lender when he was injured eight months prior to the visa application. She claimed her family was threatened and extorted by phone and blackmail messages, and that red paint was thrown in front of their house each week. They could not afford to repay the loan and interest. They did not seek help in Malaysia because the money lender would harm them further if they reported to the police. She fears they will kidnap her and sell her to refund their money, and that she and her family will be harmed by them. She needs to remain in Australia to work to repay the debt and to support her family. The authorities in Malaysia cannot protect her and she cannot relocate to an area where she would not be harmed.

16. The applicant was not invited to an interview with the delegate, and no further evidence or information was provided to the Department in support of her claims for protection.

17. On 25 February 2019 the delegate refused to grant the applicant a protection visa. The delegate was satisfied that effective protection was available from the authorities of Malaysia and that the applicant therefore did not have a well-founded fear of persecution. The delegate also found that the applicant could obtain protection from the Malaysian authorities, such that there would not be a real risk she would suffer significant harm and was therefore not owed complementary protection.

    Evidence before the Tribunal

18. As stated above, the applicant applied for review of the delegate’s decision on 11 March 2019. On 26 January 2024 she provided a copy of the delegate’s decision record.

19. The following evidence was provided in support of the applicant’s protection claims:

    a.    Photographs of a claimed attack at the applicant’s family’s home in Malaysia in December 2020, including a physical attack on the applicant’s mother and damage to property, emailed to the Tribunal on 6 March 2024 (prior to the hearing).

    b.    A video from the same claimed attack, emailed to the Tribunal on 14 March 2024 (during a brief adjournment in the hearing).

    c.     A tenancy agreement for a property in Malaysia, emailed to the Tribunal on 17 March 2024 (after the hearing).

20. At the hearing on 14 March 2024, I discussed with the applicant her family, her travel to Australia, her education and employment history, her protection visa application, and her claims for protection.

21. In summary, the applicant claimed that her father borrowed money from loan sharks or illegal money lenders. She doesn’t know when he borrowed or how much, but since 2012 her and her family have been harassed, threatened or harmed by people associated with the money lender. Her father was often out or away, and she and her mother and siblings were the ones who had to face the money lenders. She claims people associated with the money lenders threatened to sell her in Thailand or Cambodia as repayment for her father’s debts. These events have adversely impacted her mental health. In December 2020 the money lenders came to her mother’s home and assaulted her mother and damaged their house and property. The applicant claims they were looking for her. Her mother and siblings have moved from their home in [Suburb 1] to the suburb of [Suburb 2], also in [City 1], Penang. The applicant is afraid people associated with the money lender will continue to search for and harass her if she returns to Malaysia because her father’s debts remain unpaid.

22. The applicant also claimed that her mother told her that if she returns to Malaysia, the applicant is not her daughter. The applicant could not explain why her mother had said this but believes it is because the applicant lives with her father, and her parents are not on good terms. The applicant said she was not concerned her mother would harm her, but that what she had said had hurt her feelings.

23. As set out above, the applicant’s father’s review application, case number 2004025, was constituted to me after the applicant’s hearing. The applicant’s father, [Mr A], claimed to fear returning to Malaysia because of unpaid debts to loan sharks. Given the applicant’s claims to be at risk of harm from money lenders or loan sharks associated with her father’s debt, I proceeded to hear and determine his review application, prior to determining the applicant’s matter. I note the applicant’s evidence was that she knew little about her father’s debts, including when and why he had borrowed money in Malaysia, and how much debt remained outstanding.

24. The applicant’s father, [Mr A], appeared before me at hearings on 24 April 2024 and 24 May 2024. The applicant did not appear as a witness at his hearing. On 5 August 2024, I affirmed the decision not to grant [Mr A] a protection visa because I did not find his claims about unpaid debts to loan sharks to be credible. I found [Mr A]’s evidence to be vague and confused. He was unable to provide specific evidence about his debts, and there were several inconsistencies between his visa application, his oral evidence at hearing, and the evidence he gave as a witness at the applicant’s hearing. He provided no corroborative evidence in support of his claims.

25. On 16 August 2024 the Tribunal wrote to the applicant in accordance with s 424A of the Act, inviting her to comment on or respond to information I considered would be the reason, or part of the reason, for affirming the decision under review. The particulars of the information, its relevance to the applicant’s review, and the consequences of it being relied upon were set out as follows:

    Your father, [Mr A], applied for protection and claimed to fear harm in Malaysia because of his unpaid debts to loan sharks. On 5 August 2024, the Tribunal affirmed the decision not to grant your father a protection visa. The Tribunal found that your father’s claims had been fabricated and did not accept he had unpaid
    debts to loan sharks.

    This information is relevant to your review because your protection claims are premised upon your father’s claims. In your visa application and in evidence to the Tribunal, you claimed that you are at risk of harm in Malaysia because of your father’s unpaid debts to loan sharks. You claim that persons associated with the loan shark harassed you and your family in Malaysia, threatened to kidnap you for the purpose of selling you in Thailand, and that they continue to seek your whereabouts.

    If we rely on this information about your father’s case in making our decision, we would find that your claims to have experienced harm in the past in Malaysia, and to be at risk of harm in the future in Malaysia, from the loan sharks, are not credible and that you are not owed protection in Australia because of your father’s debts to loan sharks.

26. The applicant responded to the s 424A invitation on 30 August 2024. In her response the applicant reiterated her fears of returning to Malaysia. She also claimed that Malaysia is not as safe as it used to be and that this year many women and men have been kidnapped and killed. There have also been cases this year where the police have killed people. The potential for her to be like that is high.

    Analysis, reasons, and findings

27. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because she is a refugee or owed complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims regarding harm from loan sharks

28. I do not accept the applicant’s father borrowed money from loan sharks or money lenders that he was unable to pay back, or that he has an outstanding debt to loan sharks. Detailed reasons for that conclusion are set out in the decision record in Tribunal case number 2004025, dated 5 August 2024. No other reasons were put forward by the applicant for having experienced harm in the past or for being at risk of harm on return to Malaysia. As I do not accept the applicant’s father borrowed money from loan sharks or illegal money lenders, or that he has outstanding debts to loan sharks or money lenders, it follows that I do not accept that the applicant was physically harmed and threatened in the past in Malaysia by loan sharks or persons associated with the loan sharks, or that she is at risk of being physically harmed, harassed, threatened, or sold as repayment for her father’s debts, by the loan sharks or persons associated with the loan sharks.

29. I acknowledge that the applicant has given evidence about events during her life where she claims she was physically harmed or threatened by people associated with the money lenders and that her oral evidence about these events has been somewhat detailed and was given spontaneously. I have considered her evidence about being slapped, about images of her father being put up around their village, of red paint being thrown at the home, about being approached at school and at her workplace, of being threatened that she was worth a lot of money and could be taken to Thailand and sold, and her claim that her mother and siblings were attacked at their former family home in Malaysia in December 2020.

30. I also acknowledge that the applicant has provided some evidence which corroborates her claims, set out above at [19]. At the hearing I discussed with the applicant my concerns about the probative value of the photographs she had provided prior to the hearing. I also considered this evidence in my decision in the applicant’s father’s review.

31. The photographs provided by the applicant on 6 March 2024 are said to be evidence of an attack by a ‘gang’ or persons associated with the loan shark on 12 December 2020. They show what is said to be a washing machine and a motorcycle on the ground outside. They are also said to evidence damage to the wall of their family home in Malaysia and the mess left by the loan shark gang, as well as the applicant’s mother being injured by a large television being pushed onto her. The difficulty with these images is that no other evidence has been provided to identify the applicant’s mother in the pictures. Other than the applicant stating that they were taken at the family home in [Suburb 1] on 12 December 2020, there is no other information verifying the location of the photos or the date they were taken. I am not able to be satisfied they are of the applicant’s family home and their property, or the applicant’s mother, or that they corroborate her father’s claimed debt to loan sharks and to have been harmed because of those debts.

32. On 14 March 2024 the applicant emailed the Tribunal a short video of what is said to be an altercation between her family and people associated with the loan shark, from the same day as the photographs referred to above. The clip shows a television being pushed off a table onto a woman sitting on the ground, said to be the applicant’s mother. However, there is no date, time or location information provided with this video. Nor is there any sound to the video. Again, on the evidence before me, I have no way of verifying the applicant’s claim that it is her mother or that the altercation is with persons associated with the loan sharks or that it relates to unpaid debt.

33. I accept from the photographs and video that a dispute between a group of people took place at some time. However, given the limitations I have set out with this evidence, I am not prepared to accept it demonstrates that the applicant’s father has debts to loan sharks and that his family have been harmed as a result of these debts.

34. On 17 March 2024 the applicant emailed the Tribunal a tenancy agreement for the family’s new home in [Suburb 2], [City 1], in Malaysia, as evidence that the family had moved from their previous home in [Suburb 1]. The applicant’s evidence about when the family moved was inconsistent. In correspondence with the Tribunal in June 2023, the applicant said her family had moved from their previous house four years ago (being June 2019). At hearing, the applicant said her family had moved two years ago (being about March 2022), and in mid-2021.

35. I note the tenant on the agreement is named as [Ms B], who is recorded as the applicant’s mother in her birth certificate. However, the agreement is dated 30 July 2022, while the period of the tenancy is from 8 November 2021 until 7 November 2022. I note also that the applicant’s mother, [Ms B] has not signed the agreement. While I accept this tenancy agreement supports that the applicant’s mother has rented a property at [Suburb 2] as claimed, I am not satisfied it provides support to her claim they moved in about June 2019, about March 2022, or in the middle of 2021, or that they moved to avoid further harm from the loan sharks.

36. I have also considered the applicant’s response to the s 424A invitation. It simply reiterates much of what the applicant has previously said in her written and oral evidence.

37. Overall, the applicant’s written and oral evidence, and the corroborative evidence set out above, do not overcome my concerns with the reliability or credibility of her father’s claims, or the conclusion I have reached that her father’s claims have been fabricated and that he does not have debts to loan sharks. Accordingly, I am not satisfied there is a real chance the applicant will be persecuted, or a real risk she will suffer significant harm, in the reasonably foreseeable future, were she to return to Malaysia, because of debts to loan sharks incurred by her father.

    Remaining claims

38. I have also considered the applicant’s response to the s 424A invitation, where she claimed Malaysia was not as safe as before, and that the potential for her to be kidnapped or killed (by unspecified persons), or killed by the police, was high. The applicant’s statement is vague and non-specific. She has not explained why or how the potential for her to be kidnapped or killed is high, or what about her personal attributes or circumstances make this so. Insofar as this is a claim separate or distinct from her claims regarding loan sharks, I am not satisfied on the limited evidence before me that there is a real chance or a real risk the applicant would be kidnapped or killed, including by the police, in Malaysia in the reasonably foreseeable future.

1. At hearing the applicant claimed that a further reason she didn’t want  to return to Malaysia was because her mother had told her she would not be her daughter if she returned. I note the applicant said she was not concerned her mother would harm her, but that it had hurt her feelings that her mother would say that. Even were I to accept that the applicant’s mother would disown her, or cease contact with her, or be angry or disappointed in her, for returning to Malaysia, I am not satisfied that this would amount to persecution for one or more of the reasons in s 5J(1)(a), or that it would involve serious harm to the applicant, or would involve systematic and discriminatory conduct. I am also not satisfied that the applicant’s mother’s conduct would amount to arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment. Accordingly, I am not satisfied that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk she will suffer significant harm.

   Conclusion

2. 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) or (aa). There is no evidence that the applicant satisfies s 36(2)(b) or (c) 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.

   Xanthe Emery
   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.

   …