1918738 (Refugee)

[2021] AATA 4566

1918738 (Refugee) [2021] AATA 4566 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918738

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Paul Windsor

DATE:22 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 22 November 2021 at 3:01 pm

CATCHWORDS

REFUGEE – Protection visa – Thailand – failure to participate in the scheduled hearing – fears harm from a former boss and/or their agents – delay in lodging the visa application –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 441, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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 3 July 2019 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Thailand, applied for the visas on 20 February 2019.

3. In the application it was indicated that Mr [A] was raising his own claims for protection while Ms [B], who is his wife, was relying on her husband’s claims.  [Mr A] indicated he was born on [date] in Udon Thani, Thailand, is ethnic Thai and is a Buddhist.  Ms [B] indicated she was born on [date] in Nong Khai, Thailand.  She also stated she is ethnic Thai and a Buddhist.  The applicants indicated they departed Thailand legally on [date] February 2015 and arrived in Sydney, Australia on [date] February 2015, entering on Student visas.[1]

   [1] See the Departmental file.

4. In his application, [Mr A] indicated he sought protection in Australia because his boss abused, beat and threatened him when he refused to get involved in extortion work, collecting money from rich people.  He indicated that he left the job and tried to find another but his old boss made this difficult by providing false references.[2]

   [2] See the Departmental file.

5. After considering relevant country information, the delegate refused to grant the visa finding that there are effective protection measures available to the applicants in Thailand and therefore the fear of persecution is not well-founded.  In relation to the complementary protection criterion, the delegate found the applicants could obtain, from an authority of Thailand, protection such that there would not be a real risk that they would suffer significant harm.

6. The applicants applied to the Tribunal for review of this decision on 11 July 2019.  They provided the Tribunal with a copy of the delegate’s decision record.[3]

   Failure to participate in the scheduled hearing

   [3] See the Tribunal file.

7. On 27 September 2021 the Tribunal wrote to the applicants by email advising that, due to the COVID-19 pandemic, the Tribunal is not currently holding face to face hearings and consequently, may ask them to attend a hearing by video or telephone.  The Tribunal advised that it did not appear to have a telephone number for them and asked that they provide a contact telephone number within seven days.  The applicants replied on 28 September 2021 providing a mobile phone number.

8. On 1 November 2021, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to their application but was unable to make a favourable decision on that information alone.  The applicants were invited to appear before the Tribunal, by video conference using Microsoft Teams, to give evidence and present arguments at a hearing scheduled for 9:00 am on 18 November 2021.  The applicants were provided with details for joining the video conference on their computer or mobile app, or with a video conferencing device, or by phoning in (to join the conference with audio only). 

9. The applicants also were requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.

10. The letter advised the applicants that if they were not able to appear as scheduled, for instance, because they are not available on the scheduled day or believe they would experience difficulty participating in the hearing as arranged, they should advise the Tribunal as soon as possible.  The applicants were advised to note that the Tribunal will only make changes to the hearing if satisfied that it is reasonable and there are good reasons for doing so.  They were also advised that if the Tribunal did not advise them otherwise, they must assume that the hearing will go ahead as scheduled. 

11. The applicants were advised that a test dial using Microsoft Teams had been arranged for 12:30 pm on 12 November 2021. 

12. The applicants were also advised that if they did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear before the Tribunal.

13. The applicants did not respond to the hearing invitation.

14. The applicants did not join the Microsoft Teams test dial on 12 November 2021.  Three unsuccessful attempts were made to contact the applicants on the mobile phone number provided and via AVAYA.

15. The applicants were also sent an SMS reminder message regarding the hearing on 17 November 2021.

16. On 18 November 2021 the applicants did not join the scheduled video conference.  Five attempts were made to contact them on the mobile phone number provided to the Tribunal (at 8:50 am; 8:52 am; 8:58 am; 9:01 am and 9:10 am).  These were all unsuccessful.

17. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicants were properly invited to a hearing, to their nominated email address, in accordance with s.441A(5) of the Act.  The invitation did not return an ‘email undeliverable’ message.  An SMS reminder about the hearing also was sent to the mobile phone number provided.  The SMS reminder did not return ‘delivery failed’ messages.  The applicants did not respond to the invitation to attend the hearing and have not contacted the Tribunal for assistance at any stage or to explain why they did not participate in the scheduled hearing.  In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicants to appear before it.

    CRITERIA FOR A PROTECTION VISA

18. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

19. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

20. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

21. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.

22. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

23. In accordance with Ministerial Direction No.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

    Claims

24. The applicants’ claims for protection were set out in the protection visa applications.[4]  The claims are summarised as follows:

    ·He and his wife were employed in a business selling [products].  They were living a good life until his boss asked him to get involved in extortion work.  His boss wanted him to collect money from rich people in his area.  When he refused his boss started forcing him by troubling him.

    ·His boss tried beating him at work and tried abusing him.  He faced physical and mental torture in the last few years.  He received threats to his life and could not work properly.  This affected him financially and eventually he started getting depressed.

    ·He left the job and tried to find another but his former boss started providing false references and finding a job became difficult.  This made him think about his future and he concluded he needed to relocate to another country.

    ·He fears if they return to Thailand his boss will start harassing him again.  His boss took his refusal personally and will try to avenge the insult.

    ·Initially he sought help from people in his community but they could not help because his boss is powerful and they did not want to get involved. 

    ·He did not feel safe reporting the matter to the authorities as his boss has good contacts with some organisations and authorities and he knew he would not get any support. Due to corruption he does not feel safe and confident to seek help from the authorities.

    ·He sought help from some relatives to move to another part of Thailand but they were scared about his situation and did not want to get involved.  His boss also has a very good network with bad people and they would easily track him down and find him if he moved to another part of the country.

    [4] See the Departmental file.

    Findings and reasons

    Identity

25. On the basis of the copies of their passports submitted to the Department,[5] the Tribunal accepts that the applicants are citizens of Thailand and that their identities are as claimed.  The Tribunal accepts that Thailand is their ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Issues

    [5] See the Departmental file.

26. The issues in this review are whether either of the applicants has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of either applicant being removed from Australia to their receiving country of Thailand, there is a real risk either applicant will suffer significant harm.

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

    Assessment of claims

28. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.  Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.  A decision-maker is not required to make the applicant's case for them.  It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.  The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

29. The applicants’ claims for protection lack detail and are unsupported by any corroborating evidence.  Neither applicant provided an employment history in their application but at question 31 of the application forms, where they were asked to list their occupation, both stated ‘SELF BUSINESS’.  Outside of the claims for protection, neither provided any information indicating that they worked for another person in a business selling [products].  The applicants did not explain how, when, where or why they came to be working for a boss involved in criminal activities who had a network of bad people and, if this was true, why this man after a period where they had been living a good life, suddenly asked [Mr A] to get involved in extortion work, collecting money from rich people.  The Tribunal would have questioned the applicants about these matters if they had attended the hearing.

30. The applicants have not provided any supporting evidence from independent sources, such as medical reports, to support the claims that [Mr A] faced physical and mental torture over a period of several years and that he became depressed.  They have not provided copies of any ‘life threats’ [Mr A] claimed to have received.

31. The applicants also indicated in their applications that they lived all their lives (before coming to Australia) in Udon Thani, the capital of Udon Thani province, a town of approximately 220,000 people in north-eastern Thailand, around 560 km from Bangkok.[6]  The DFAT Country Information Report indicates that Thailand is a country of approximately 70 million people and that the capital, Bangkok, is the largest city with over 10 million people.  The report indicates that Thailand has experienced rapid economic and social development in recent decades, is classified by the World Bank as an upper-middle income country, has the second largest economy in Southeast Asia after Indonesia, and the official unemployment rate of 0.7 per cent is among the lowest in world.[7]  Against this background, [Mr A] has not explained why, if he left the job and tried to find another as claimed, his boss was able to provide false references (presumably unsolicited) preventing him from obtaining any alternative employment, and why he and his wife could not have relocated to a major centre far away from Udon Thani, such as Bangkok, where it seems implausible that a former boss would have been able to find and harass them.  The Tribunal also would have questioned the applicants about these matters if they had attended the hearing.

    [6] Udon Thani, Thailand, Britannica, DFAT Country Information Report, Thailand, 10 September 2020, sections 2.5, and 2.12-2.16.

[Mr A] claims he faced physical and mental torture from his former boss over the ‘last few years’, which he states affected him financially and made him depressed.  He has not, however, indicated how he was able to meet the significant financial requirements for Australian student visas for him and his wife, which would have required that he show they had the financial capacity to pay the relevant course fees and meet their living expenses.  He also has not indicated whether he actually studied in Australia and for how long.  It is not clear from the available evidence how the applicants have been supporting themselves in Australia.  In the applications both applicants indicated they were currently unemployed (and financially supported by savings).  Neither provided details of any employment history, either in Australia or in Thailand.  If their claims were true, the Tribunal considers it extremely unlikely that the applicants could have supported themselves in Australia since they arrived in February 2015 without working.  The Tribunal also would have questioned the applicants about these matters if they had attended the hearing.

The Tribunal also notes that while the applicants arrived in Australia in February 2015, they did not apply for protection visas until February 2019, four years later.  The Tribunal finds this is inconsistent with the applicants having a genuine fear of harm should they have to return to Thailand, especially given the Tribunal’s concerns outlined above regarding how they have been supporting themselves in Australia.  The Tribunal considers if the applicants were genuinely fearful that a former boss and/or his agents might harm them if they returned to Thailand, they would have been highly motivated to find out about protection visas and would have made an application for protection visas much sooner after arriving in Australia.

Considering the available evidence, the Tribunal is not satisfied that the applicants were ever  employed in a business ‘selling [products]’ or that their boss ever sought to get [Mr A] involved in extortion work, collecting money from rich people in his area.  Accordingly, the Tribunal does not accept that [Mr A] was ever harassed, abused and/or beaten by a former boss or that he ever faced physical and mental torture and received death threats from a former boss.  The Tribunal does not accept that [Mr A] left the job but found it difficult to secure another job because the former boss provided false references.  The Tribunal does not accept that the claimed situation affected [Mr A] financially and he became depressed.  Consequently, the Tribunal finds that there is not a real chance that [Mr A] and/or his wife would suffer treatment amounting to persecution involving serious harm from a former boss and/or their agents should they return to Thailand.

Does either of the applicants have a well-founded fear of persecution if they returned to Thailand?

Having considered the applicants’ claims, for the reasons given above, the Tribunal does not accept that there is a real chance that either applicant will suffer persecution involving serious harm from an ex-boss and/or their agents, for one or more of the five reasons mentioned at s.5J(1)(a), if they were to return to Thailand, now or in the foreseeable future.

Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(a).

1. As the Tribunal has found that there is not a real chance that either of the applicants would suffer persecution involving serious harm from an ex-boss and/or their agents, the Tribunal finds that the applicants would not require the protection of the authorities in Thailand.

   Complementary protection

2. Having concluded that neither of the applicants meets the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

3. In considering whether there is a real risk that either of the applicants will suffer significant harm, as a necessary and foreseeable consequence of them being removed from Australia to Thailand, the Tribunal has noted that in MIAC v SZQRB, 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 relation to the ‘refugee’ criterion.[8]

   [8] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].

4. Considering the available evidence, and having regard to the findings of fact set out above, the Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Thailand, there is a real risk that either of the applicants will suffer significant harm, as set out in s.36(2A), from an ex-boss and/or their agents, or any other authority, organisation, person or group.

5. Accordingly, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Member of the same family unit

6. There is no suggestion that either of the applicants 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, neither of the applicants satisfies the criterion in s.36(2).

   DECISION

7. The Tribunal affirms the decision not to grant the applicants protection visas.

   Paul Windsor
   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.

   …