1919445 (Refugee) - [2024] ARTA 907

1919445 (REFUGEE) [2024] ARTA 907 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1919445
Tribunal:General Member A Hirsch
Date:19 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review
General Member A Hirsch
Statement made on 19 December 2024 11:42:59 AM
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from business investors and authorities – partner stole money from business and left applicant with responsibility to repay – applicant convicted and company’s assets impounded – vague claims and no documentary evidence provided – consent to decision without hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)
CASES
BMY18 v MHA [2019] FCAFC 189

DFQ17 v MIBP [2019] FCAFC 64
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
MIAC v SZQRB [2013] FCAFC 33
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 July 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia applied for the visa on 2 October 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for a protection visa because he is not a person in respect of whom Australia has protection obligations.
On 17 July 2019, the applicant applied to the Administrative Appeals Tribunal (AAT) for merits review of the delegate’s decision. While this was outside of the prescribed timeframe for an application for review (which would have been 31 March 2019), the notification letter from the Department resembles the error identified in DFQ17 v Minister for Immigration and Border Protection[1] and BMY18 v Minister for Home Affairs.[2] As such, the application for review is valid.
[1] [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J.
[2] [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 25 March 2024, the Tribunal wrote to the applicant inviting him to complete a Pre-Hearing Information form. The form asks, among other things, whether the applicant wants to give any further information about the claims for protection or whether there are any other reasons why he would be afraid to return to his home country. The applicant did not returned the form on 26 March 2024. In response to the question on the form ‘claims for protection’, the applicant copied the written summary of their claims found in the delegate’s decision.
On 6 November 2024, the applicant was provided with a Notice of Hearing, informing them of the hearing on 16 December 2024 and requesting that they complete the Response to Hearing Notice form. On 6 December 2024, the applicant returned the Response to Hearing Notice form, marking the box indicating that he would not participate in the hearing and requested that the Tribunal ‘make a decision on the papers without holding a hearing’.
CAN A DECISION BE MADE WITHOUT A HEARING?
Section 106(3) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) provides that a decision can be made without holding a hearing if ‘(a) the only parties to the proceeding are the applicant and a non - participating party to the proceeding or the hearing of the proceeding; and (b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The term ‘adequately determined’ as per s 106(3)(c) is not defined in the ART Act. The principles of statutory interpretation require that I consider the text, context and purpose of a legislative provision when determining its meaning.[3] The ordinary meaning of ‘adequate’ is defined in the Macquarie Dictionary as ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and in a legal context as ‘reasonably sufficient for starting legal action’ in the sense of ‘adequate grounds’. Using this literal definition, it is clear that an application can be ‘adequately determined’ if there is sufficient information available to the Tribunal in order for it to determine the issues in the application.
[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78] (McHugh, Gummow, Kirby and Hayne JJ).
As per EIZ20 v Child Support Registrar, it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing.[4] In properly carrying out its duties, ‘the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation seek further information or hold a hearing.’[5]
[4] EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023)
[5] Ibid [60] [emphasis added].
The Tribunal has the applicant’s protection visa application, in which he details his claims for protection. It also has the delegate’s decision record. The applicant has also provided the Tribunal with information in the Pre-Hearing Information form. From these documents, I have decided that there is sufficient information in order to adequately determine the issues in this application.
‘Adequately determined’ does not mean that the application must be determined in favour of the applicant. Nor does it mean that there needs to be sufficient evidence before the Tribunal in order for it to make favourable decision. The context of this provision is clear that a decision under s 106(3)(b)(ii) may not be in favour of the applicant. This is because the preceding subsection 106(3)(b)(i) allows for the Tribunal to make a decision without the request of the applicant where the decision is ‘wholly in favour of the applicant’. Reading s 106(3)(b)(ii) as requiring the decision to be in favour of the applicant would render s 106(3)(b)(i) redundant.
The Tribunal may find that there is sufficient information before it in order to adequately determine the issues in the application, yet still determine that there is insufficient evidence in order to substantiate the applicant’s protection claims.[6] Indeed, the applicant has been informed of this possible outcome. In the Notice of Hearing letter dated 6 November 2024, which the applicant received with the Response to Hearing Notice form, the applicant was informed that ‘if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.’
[6] Ibid [69].
Turning to the purpose, the objective of the ART is set out in s 9 of the ART Act:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
a)    is fair and just; and
b)    ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
c)    is accessible and responsive to the diverse needs of parties to proceedings; and
d)    improves the transparency and quality of government decision-making; and
e)    promotes public trust and confidence in the Tribunal.
There is no hierarchy in this objective and the Tribunal is required to balance all of the considerations when performing its functions. In consideration of the objective to resolve applications ‘as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits’, I believe giving the applicant further opportunities to present their case will not achieve this purpose.
In terms of providing a mechanism of review that is ‘fair and just’,[7] the applicant has had multiple opportunities to present their evidence – either through proving written statements, providing the Tribunal documents, witness testimony or through giving oral evidence at the hearing they were invited to attend. The Pre-Hearing Information form, which the applicant received on 25 March 2024 reminded the applicant to submit further information to the Tribunal as soon as possible, if they wished to do so. Likewise, the Notice of Hearing, sent 6 November 2024, asked whether the applicant wished to submit any documents to the Tribunal. The applicant marked the ‘no’ box. The applicant chose not to provide any further evidence than what was before the Department of Home Affairs’ delegate. As such, I consider all information the applicant wishes the Tribunal to consider has been provided to the Tribunal.
[7] Administrative Review Tribunal Act 2024 (Cth) s 9(a).
It should also be noted that as per s 5AAA(2) of the Migration Act, it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim to be a person in respect of whom Australia has protection obligations. Effectively, the Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
In reviewing a decision to refuse to grant a protection visa, the issues which I am required to determine are:
·whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Migration Act if returned to their receiving country and if not;
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
I have before me a copy of the Department’s file. This includes a copy of the applicant’s identity documents, and his protection visa application form, which contains his biographical information and protection claims. Additionally, he provided to the Tribunal a copy of the delegate’s decision record which sets out some of this information. Based on this information I am able to determine the applicant’s identity and receiving country. I am also able to form conclusions about whether he meets the criteria for a protection visa in ss 36(2)(a) and 36(2)(aa) of the Migration Act without seeking further evidence or submissions from the applicant. Given the above, I find that the issues for determination in the proceeding can be adequately determined in the absence of a hearing, as per s 106(3) of the ART Act.
As such, on 9 December 2024, the Tribunal wrote back to the applicant stating that ‘As you have consented to the Tribunal deciding the application for review without conducting a hearing, our decision will now be made based on the information and evidence currently before us.’
BACKGROUND
The applicant claims to be a citizen of Malaysia. He arrived in Australia [in] August 2018. The issues to be considered in this case are as follows:
·whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Migration Act if returned to Malaysia and if not;
·whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
Evidence before the Department
Evidence before the Department consisted only of the applicant’s protection visa application form. In that application, he claims to fear harm on return to Malaysia for the following reasons:
·He was in a business partnership running a multi-level marking business. His business partner stole money from the business and left him with the responsibility of repaying hundreds of investors.
·The investors lodged a complaint with the authorities and he was convicted. His company assets were impounded and he cannot repay the investors.
·He fears harm from the authorities upon return, and also fears harm from those which he owes money to.
·He was convicted and is now a ‘wanted person’ and will not get protection from the authorities.
The Department did not invite the applicant for an interview.
The delegate was not satisfied Australia had protection obligations in respect of the applicant and refused the protection visa application because they did not meet s 36 of the Migration Act.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
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 he 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.
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.
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).
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s identity and country of reference
The applicant claims to be a citizen of Malaysia. The applicant provided a copy of his passport to the Department. The Department accepted the applicant’s identity. There is nothing before the Tribunal to suggest that the applicant is not the person identified in the application for protection.
The Tribunal accepts that the applicant is a citizen of Malaysia which is also his receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?
As discussed above, the applicant was invited to present further information to the Tribunal, and attend a hearing, in order to provide additional supporting evidence to substantiate claims for protection. The applicant chose not to do so.
I do not accept the applicant’s evidence as I find it vague and lacking in detail. The applicant claims to have run a multi-level marketing business. However, there are no details from the applicant about the nature of this business and what sorts of investments or products they were providing. There are no business records, bank accounts, details of company assets, contracts, or any other documents substantiating this claim. There is no information about how much money he owes the investors, or if he has attempted to pay them back.
The applicant claims that his business partner stole money from the business, leaving him to pay the investors of the business. However, the applicant has not provided any details about this person who he claims to have stolen his money. He does not provide the business partner’s name, their role in the company, or any communication between the applicant and the business partner.
The applicant claims that the investors of the business lodged a complaint with the Malaysian authorities, and that he was convicted (presumably for fraud or similar wrongdoing). However, there are no details of this complaint, or the court case, such as when and where it took place, and no record of any court decision has been provided. The applicant has not explained what the punishment for his conviction was, nor how he managed to avoid punishment.
The applicant claims to fear harm upon return to Malaysia, both from the Malaysian authorities, and from those whom he owes money to. However, he does not provide any details of the kinds of harm he fears, nor any evidence of any harm he experienced before he left Malaysia.
On the limited information before me, I do not accept these claims as I do not find the evidence credible because they are vague and lacking sufficient detail. The Tribunal therefore does not accept that there is a real chance that the applicant would be harmed in the reasonably foreseeable future if he returns to Malaysia. As such, I find that the applicant does not have a well-founded fear of persecution and therefore does not satisfy s 36(2)(a) of the Migration Act.
Does the applicant satisfy the complementary protection criterion for protection?

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm as per s 36(2)(aa) of the Migration Act. In MIAC v SZQRB,[8] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
[8] [2013] FCAFC 33.
For the same reasons set out above, I do not accept the applicant’s claims because they are vague and lacking in detail. As such, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
I therefore find that the applicant is not a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(aa).
CONCLUSION
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).
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).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
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 his 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 his 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 his 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 his 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 his religious beliefs, including by renouncing a religious conversion, or conceal his or his true religious beliefs, or cease to be involved in the practice of his or his faith;
(ii)conceal his or his true race, ethnicity, nationality or country of origin;
(iii)alter his or his political beliefs or conceal his or his 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 his sexual orientation or gender identity or conceal his or his 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 his 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.
…