1918814 (Refugee)

[2024] AATA 3285

1918814 (Refugee) [2024] AATA 3285 (17 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1918814

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Ben Lumsdaine

DATE:17 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 17 May 2024 at 11:30am

CATCHWORDS
REFUGEE – protection visa – Fiji – economic situation – security and human rights situation – denial of any fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 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 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 4 July 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 2 February 2019. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.  

3. The applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

   CRITERIA FOR A PROTECTION VISA

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

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

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

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

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

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (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.

   CLAIMS AND EVIDENCE

   Background

10. The applicant is a [age]-year-old man from [Village 1] in Fiji. He arrived in Australia [in] February 2019 on a Visitor 600 visa, travelling on a valid Fijian passport issued [in] 2018.  In his protection visa application, he stated that he came from [Village 1] and lived either there or in Suva for most of his life. He completed secondary school and later obtained a certificate in [Occupation 1]. He has worked as a [Occupation 1] and [Occupation 2] in Fiji. 

    Evidence before the Department of Home Affairs

11. The applicant applied for a protection visa on 7 March 2019.  In his application for a protection visa, the applicant indicated that he had not been assisted in preparing the application form but would need the assistance of a Fijian interpreter should he be interviewed in relation to his protection visa application.

    ·     In his application for a protection visa, the applicant made the following claims:

    ·     He did not fear harm in Fiji, just poverty.

    ·     At times he was unable to afford transport to work or lunch when he was at work. On one occasion he had to choose between spending FJD50 on groceries and paying for his child to go on an excursion, which cost FJD20.

    ·     He wants access to better homes, health services, education and training for elite jobs for his children as well as better infrastructure and transport and better opportunities for his children.

12. The applicant also provided a report by UNICEF entitled ‘Children in Fiji: 2011 An Atlas of Social Indicators’. In a statement provided with the application, the applicant highlighted that on page 12 of the report that NICEF defined the Basic Needs Poverty Line as FJD175 per week and he earned FJD380, which was the ‘equivalent of FJD190 per week’.

13. On 19 March 2019, the applicant was sent a letter from the Department acknowledging they had received a valid protection visa application and informing the applicant that an appointment had been made for him to provide biometrics information on 27 March 2019. The applicant attended the biometrics appointment at the Department.

14. On 4 July 2019, a delegate of the Minister for Home Affairs refused the applicant’s protection visa application. The delegate considered country information regarding the human rights situation in Fiji, access to land for indigenous Fijians and found that the applicant would not face a real chance of persecution on the basis of race, or any other reason. The delegate also found the applicant would not face a real risk of significant harm in Fiji.

15. The applicant was notified by email sent to the email address provided in the applicant’s protection visa application.

    Evidence before the Tribunal

16. On 12 July 2019, the applicant applied for review of the delegate’s decision to refuse his protection visa application. The application for review included a copy of notification of the delegate’s decision to refuse his application and the reasons for the decision. The applicant has provided no further evidence in relation to his claimed need for protection.

17. On 27 March 2024, the applicant attended a hearing in person before the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. At the conclusion of the hearing, the Tribunal explained to the applicant that it would not make a decision for two weeks to allow the applicant to seek legal advice and provide further evidence and information if required. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

18. No further information or evidence has been provided to the Tribunal in relation to the applicant’s claims.

    Independent information

    Economic situation

19. Fiji is considered an upper-middle income country by the World Bank.[1] Around 30% of the population was living in poverty in 2019 though the estimates of the poverty rate vary and the impact of the COVID-19 pandemic is not known.[2] iTaukei generally have large kinship networks that support family members in need. [3] According to the International Labour Organization, subsistence farming and kin-based wealth redistribution mitigate rates of extreme poverty.[4] There is a pension system[5] and healthcare is generally available for those who need it and is free to the patient.[6] However, mental healthcare is not always available and there can be some societal stigma against mental health conditions.[7]

    [1] DFAT Country Information Report Fiji, 20 May 2022, at [2.9]

    [2] DFAT Country Information Report Fiji, 20 May 2022, at [2.9]

    [3] DFAT Country Information Report Fiji, 20 May 2022, at [2.23]

    [4] DFAT Country Information Report Fiji, 20 May 2022, at [2.9]

    [5] DFAT Country Information Report Fiji, 20 May 2022, at [2.22]

    [6] DFAT Country Information Report Fiji, 20 May 2022, at [2.11–2.12]

    [7] DFAT Country Information Report Fiji, 20 May 2022, at [2.13–2.14]

    Security and human rights situation

20. Fiji is generally stable and secure.[8] The risk of terrorism is low.[9]  Crime rates, especially for violent and organised crime are generally low. [10] Organised crime exists but is unlikely to affect people’s day-to-day lives.[11] 

    [8] DFAT Country Information Report Fiji, 20 May 2022, at [2.34]

    [9] DFAT Country Information Report Fiji, 20 May 2022, at [2.34]

    [10] DFAT Country Information Report Fiji, 20 May 2022, at [2.34]

    [11] DFAT Country Information Report Fiji, 20 May 2022, at [2.34]

21. Fiji abolished the death penalty in 2015 and it was last used in 1964.[12] DFAT is not aware of any recent extrajudicial killings or enforced or involuntary disappearances.[13]

    
    

    Torture is unlawful but has been alleged in the context of police brutality.[14] Fiji police are generally considered professional, well-resourced and, in general, disciplined.[15] Police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[16] Police violence is often reported, though the situation is improving. [17] Police misconduct, including excessive violence, is regularly investigated and in most cases there is reasonable action taken when a complaint is reported.[18] 

    [12] DFAT Country Information Report Fiji, 20 May 2022, at [4.3]

    [13] DFAT Country Information Report Fiji, 20 May 2022, at [4.1–4.2]

    [14] DFAT Country Information Report, Fiji 20 May 2022, at [4.4]

    [15] DFAT Country Information Report, Fiji 20 May 2022, at [5.6–5.7]

    [16] DFAT Country Information Report, Fiji 20 May 2022, at [5.10]

    [17] DFAT Country Information Report, Fiji 20 May 2022, at [5.11]

    [18] DFAT Country Information Report, Fiji 20 May 2022, at [5.13]

22. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[19]  DFAT assesses that there is no official or societal discrimination against members of the Methodist church based on their religion.[20]  DFAT is not aware of any official or societal discrimination against failed asylum seekers.[21]  

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [19] DFAT Country Information Report, Fiji 20 May 2022, at [3.14]

    [20] DFAT Country Information Report, Fiji 20 May 2022, at [3.09]

    [21] DFAT Country Information Report, Fiji 20 May 2022, at [5.28]

    Analysis – assessment, reasons and findings

23. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. The Tribunal has considered the applicant’s claims and the independent information described above and makes the following findings. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality and receiving country

24. The applicant claims to be a citizen of Fiji and no other country. The applicant provided the Department with a copy of his Fijian passport. The delegate was satisfied with the applicant’s identity and the authenticity of his passport. The Tribunal also sighted his original passport at the hearing and is satisfied that it was the applicant’s and that he is a citizen of Fiji. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Fiji and considers Fiji is the receiving country for the purpose of assessing his claims against the refugee and complementary protection criteria respectively.

    Consideration of applicant’s claims to be a refugee

25. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

26. At the commencement of the hearing, the Tribunal explained the role of the interpreter, the confidential nature of the hearing, and the role of the Tribunal in making a decision on the applicant’s application. The Tribunal checked if the applicant had read and understood the meaning of refugee and complementary protection in the booklet provided to him before the hearing. The applicant confirmed that the hearing attendant had explained the meanings to him and that he had read and understood them and did not need them explained further.

27. The Tribunal confirmed the applicant’s identity, and citizenship. The Tribunal also asked about the applicant’s work history in Australia and he told the Tribunal he had been in full-time work for approximately the last five years and had earned over AUD$1000 per week in that time.

28. The Tribunal asked the applicant if anyone had assisted him in preparing his protection visa application and supporting statement. The applicant gave evidence that a man had helped but that this man was not a lawyer, migration agent or interpreter. The Tribunal asked the applicant if he had read the application and statement he had lodged with the Department. The applicant gave evidence that he had not but he had recently been told by a friend from church that the information in the application form was not correct. When the Tribunal asked the applicant which information in the application was not correct, the applicant indicated the claims about poverty were not true. The Tribunal asked the applicant if he meant to say he would not be in poverty if he returned to Fiji and the applicant confirmed that was the case. The applicant explained that the person who had helped him fill in the application wrote about poverty so he can remain here but it was not true. The Tribunal asked if there was other information that the applicant meant to put in the application but did not. The applicant replied that the main reason he applied for the protection visa was so he could find a decent job with decent wages so he could look after his family in Fiji.

29. The Tribunal asked the applicant if he was a refugee. The applicant said, ‘No I am not a refugee.’ The Tribunal asked the applicant if he wanted the meaning of ‘refugee’ explained to him and he said he could understand it. The Tribunal asked the applicant if he wanted the meaning of complementary protection explained to him. The Tribunal explained the meaning of significant harm to the applicant and asked if he feared such harm or if he was at real risk of such harm in Fiji and he confirmed he did not.

30. After a short adjournment, the Tribunal asked the applicant if he had any political affiliation or feared harm for his political opinion in Fiji. The applicant confirmed he did not. The Tribunal asked if the applicant was religious and the applicant stated he was a Methodist. The Tribunal asked the applicant if he feared harm in Fiji for this reason, the applicant confirmed he did not. The Tribunal asked if the applicant feared discrimination for this reason or his political opinion in Fiji. The applicant confirmed he did not. The Tribunal asked if the applicant feared harm or discrimination in Fiji on the basis of his race and the applicant confirmed he did not. The Tribunal asked if the applicant feared harm or discrimination on the basis of his nationality in Fiji and the applicant confirmed he did not. The Tribunal asked if the applicant feared harm or discrimination in Fiji for any other reason such as for having a disability or his sexual orientation and the applicant confirmed he did not.

31. The Tribunal put to the applicant that on the basis of his evidence and independent country information there was no evidence he would face a real chance of serious harm on return to Fiji and for this reason, the Tribunal might find he is not a refugee. The applicant indicated that he did not wish to respond to this.

32. The Tribunal put to the applicant that based on the applicant’s evidence at the hearing and independent country information, there was no evidence to indicate the applicant would face a real risk of significant harm on return to Fiji and this may lead the Tribunal to find that the applicant is not in need of complementary protection. The applicant did not wish to respond.

33. The Tribunal asked if the applicant wished to raise any other matters. The applicant apologised for providing incorrect information in his application, confirmed that he was not a refugee or in need of complementary protection and asked if he could be considered for other visas. The Tribunal stated it could only consider if he was a refugee or in need of complementary protection and the Tribunal could not assist him with this.

34. The Tribunal asked the applicant if he wanted more time to seek legal advice and provide further information and agreed not to make a decision for two weeks from the date of the hearing. The Tribunal explained that if he provided further information the Tribunal would consider it before it made a decision but if it did not, the Tribunal could make a decision based on the information before it. The applicant indicated that he understood. The Tribunal has not received any further information or evidence from the applicant after the hearing.

35. The Tribunal has had regard to the applicant’s evidence provided to the Department and Tribunal, including his evidence at the hearing on 27 March 2024 as well as the most recent DFAT Country Information Report for Fiji. On the evidence before it, the Tribunal is not satisfied that the applicant would face a real chance of serious harm for any reason on return to Fiji.

    Findings on refugee criterion

36. For the reasons above, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to Fiji for any reason in s 5J(1)(a), now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied the applicant has a well-founded fear of persecution in Fiji. Accordingly, the applicant does not satisfy s 5H(1).

    Consideration of applicant’s claims for complementary protection

37. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).

1. As set out above, the Tribunal is not satisfied that the applicant would face a real chance of serious harm in Fiji for any reason. For the same reasons that led the Tribunal to come to that conclusion, which are set out above, particularly the applicant’s express denial that he feared any risk of harm or discrimination in Fiji the Tribunal is similarly not satisfied that the applicant would face a real rick of significant harm. The applicant has provided no information or evidence to indicate that he would face a real risk of significant harm for any other reason.

   Findings on complementary protection

2. The Tribunal is not satisfied that there are substantial reasons for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji there is a real risk of significant harm.

   CONCLUDING PARAGRAPHS

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 any of the criteria in s 36(2).

   DECISION

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

   Ben Lumsdaine
   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.

   …