1925813 (Refugee)
[2024] ARTA 680
•19 November 2024
1925813 (REFUGEE) [2024] ARTA 680 (19 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 1925813
Tribunal:General Member J Cabarrús
Date:19 November 2024
Place:Sydney
Decision:The Tribunal affirms the decisions under review.
Statement made on 19 November 2024 at 10:53am
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – opposition to military government – physical assault – fear of detention – fear of killing – employment – threatening phone calls – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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 19 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who are nationals of Fiji as shown on their passports, applied for the visas on 29 November 2016. The delegate refused to grant the visas on the basis that they did not meet the refugee or complementary protection criteria.
The issue in this case is whether the applicants meet the refugee criterion, and if not, whether they meet the complementary protection criterion. These criteria broadly require an applicant to face a real chance of persecution for specified reasons, or a real risk of significant harm, in their home country. The relevant law is set out in the attachment at the end of this decision.
For the following reasons, I have concluded that the decision under review should be affirmed.
BACKGROUND
The applicants are husband and wife. The first applicant (husband, who I will call ‘the applicant’ for ease of reference) was born in [Town 1], Fiji in [specified year] and the second applicant (wife) was born in [Town 2], Fiji in [year]. They married in 1986 and had [number of children] between [specified years]. The applicants came to Australia in June 2016 on visitor visas and applied for the protection visas in November 2016.
They gave the Department various identity documents including copies of their passports, their marriage certificate, birth certificates for the applicants and their [children], and the applicant’s Fijian driver licence and Tax ID number card. They also gave the Department copies of their police clearance certificates, a police service certificate for the applicant, a 3-page typed and signed statement from the applicant outlining his claims, a submission from their representative at the time (Bardo Lawyers) dated 29 November 2016, and the following articles:
a.ABC Lateline, ‘Fiji Mutiny’ transcript, 2 November 2000;
b.Telegraph (Barbie Dutter), ‘Fiji rebels executed three officers during failed mutiny’, 8 November 2000;
c.Sydney Morning Herald (AP), ‘Troops found guilty of Fiji mutiny’, 21 July 2004;
d.The Age, ‘Fiji troops disarm police’, 4 December 2006;
e.The Guardian (Roger Maynard), ‘Fiji military seizes power in bloodless coup’, 5 December 2006;
f.Wikipedia, ‘2000 Fijian coup d’état’, last modified 19 May 2016; and
g.Wikipedia ‘2006 Fijian coup d’état’, last modified 14 November 2016.
The delegate refused to grant the visas in August 2019 and the applicants applied to the Tribunal for a review of that decision in September 2019. They gave the Tribunal:
a.various health and surgery records referring to the applicant’s [medical] conditions;
b.an email of support from [Peoples Alliance Australia], [in] October 2024;
c.a letter of support from [Leader A] ([Church 1]), 7 August 2024; and
d.a tax statement from [Charity 1] showing monthly $50 donations in 2023-2024 financial year.
The applicant appeared before the Tribunal on 22 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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.
SUMMARY OF CLAIMS
The applicant’s claims, as set out in the statement and submission given to the Department, and the applicant’s evidence to me at hearing, may be broadly summarised as follows:
a.the applicant was a member of the Fijian police force;
b.in November 2000, he was involved in events concerning [soldiers] belonging to the Counter Revolutionary Warfare (CRW) Unit who were involved in a mutiny at Queen Elizabeth Barracks –
i.the CRW soldiers were brought to his police station by the military and locked [up];
ii.an hour later, another team of military officers came and ordered the applicant and his police colleagues to release the CRW soldiers;
iii.the applicant and his colleagues tried to resist, telling the military officers that the soldiers were under their custody, [followed by threats];
iv.[details deleted] the officers forced open the cell and took the CRW soldiers away;
v.the applicant later found out that CRW soldiers were taken to another police station where they had died;
vi.the applicant raised the issue to his superiors who told him to shut up and follow instructions;
c.after that incident, the applicant felt that he was a marked man, as he was often refused when he requested things, for example he applied to transfer to a different police station in 2004, which was refused;
d.in [year], the applicant was part of a team of police officers who were guarding [equipment] at [Location 1] in Suva, when military soldiers came and took the [equipment];
e.later in [that year], the applicant was involved in a team of officers set up [for a political purpose];
f.in [year], a colleague associated with [the government] accused the applicant of stealing [money] and he was suspended from work for [a period] without pay;
g.subsequently, he was accused of [treating a prisoner incorrectly] and was again suspended from work for [a period] at half pay;
h.after coming to Australia, he received threatening phone calls in 2016, 2017 and 2018;
i.he has had health conditions which have been impacted on by the claimed events.
The applicant claimed that he was afraid of people in key government and police positions who are loyal to former Prime Minister Bainimarama. He named [three officials] as 3 such persons. He claimed that the military perceived that he is an enemy to their cause, and he feared that if he returned to Fiji, he could be imprisoned for treason or killed.
FINDINGS AND REASONS
Differences between statement and evidence at hearing
The applicant provided a signed 3-page statement setting out details of his claims, which accompanied his visa application and was referred to as a ‘Detailed statement of events from the Main Applicant’ in paragraph 25 of the submission made by his solicitor at the time. The applicant told me he dictated this statement through an interpreter, and that he had read it afterwards and it correctly captured what he had told them. He also told me that he lost his visa application documents 5 days before the hearing, but he confirmed that he had read the documents recently.
There were significant differences between what was in the statement and what the applicant told me at the hearing, as set out below.
Interception of [equipment]
In his statement, the applicant said that when the military personnel intercepted the [equipment] at [Location 1], there was a bitter and violent confrontation between the police officers and the military, and that their opposition was met with threats of arrests by the military.
At the hearing, the applicant told me that when the military came and took the [equipment], there was nothing that he and his police colleagues could do, because the military officers were fully armed. I asked the applicant what he did when they came to take the [equipment] away. He replied that they couldn’t do anything, they just went back to the police station and asked their superior officer who said nothing, and that they were following instructions. I asked if he had anything more to tell me about that incident and he told me that it had really affected them and their morale, to be forcibly taken from a job they were supposed to be doing, with the knowledge of their superiors.
The applicant’s account at hearing did not refer to any violence, opposition by the police, or threats of arrest by the military.
Investigation team
In his statement, the applicant said that as part of the investigating team set up by police [for a political purpose], he became a regular face of opposition to the military, as he appeared constantly during police interviews and interrogations.
At the hearing the applicant told me that he wasn’t part of the investigation team, he was there to provide reinforcement or support to the team, and that his role was simply to escort [a named official] upon his arrest. He said that the team was formed after the 2006 coup, one week prior to the planned arrest, and that he attended a briefing. I asked him if he did anything else in the team apart from attending a briefing and preparing to arrest [the official], and he said that the team he was in was just to escort him upon his arrest.
The applicant’s account at hearing did not refer to appearing constantly during police interviews and interrogations and referred to a different kind of involvement with this team.
Threats, torture and physical harm
In the statement, the applicant said he was silenced, with threats that he and his family and children would be harmed, that he was constantly threatened that his position with the police force would be lost, and that he had been subjected to torture and countless acts of physical harm.
At the hearing, when I asked him what consequences or repercussions he had faced for refusing to follow the order to release the CRW soldiers, he told me that he felt that he was a marked man, he was always refused whenever he wanted something, for example his application for a transfer in 2004 was refused, even though he wanted to get away from the police station he was working at, because it reminded him of everything he had suffered. I asked him what he had suffered, and he replied that he had a headache which affected his health, it wasn’t so much a physical thing, but he felt emotions and anxiety and sometimes he couldn’t concentrate on his work or his family. I asked him if there were any other examples of mistreatment other than being refused a transfer in 2004, and he replied that he was always blocked and told ‘no’ whenever there was anything that he wanted or needed.
He also told me of an incident in which he claimed he was accused of stealing money from an exhibit, following which he was suspended without pay for [a period], and a further incident in which he claimed he was suspended on half pay for 4 or 5 months because he was blamed for [incorrectly treating a prisoner]. I asked him if there had been any other incidents, and he told me there had been no other incidents. I later asked him again whether there had been any other instances of him being harmed, harassed or threatened and he told me that there had not.
The applicant’s evidence at hearing did not refer to any torture, physical harm, threats of harm, or threats of losing his position (though it did include claims that he was suspended from his position).
Threatening phone calls
At the hearing, the applicant told me that after he came to Australia in 2016, he received threatening phone calls from Fiji. He initially told me that he started to receive these as soon as he arrived in Australia, and subsequently corrected that to say it was a couple of months after he arrived in Australia. He said that the people who called would say things like when the applicants came back, they would break them; they’d harass his family; they’re still after them; and they’re from the military.
He said that in 2016 he received these calls almost every week, then in 2017 it was about once every 2 months, then they last called him before Christmas in 2018, saying the same threatening words, and that they were still after him because he was loyal to the police and against them.
These threatening phone calls were not referred to in the statement.
Applicant’s explanations about the differences in his evidence
I asked the applicant if he could explain why there were differences between what he wrote in his statement and what he told me at the hearing.
He told me that he had lost the visa application documents 5 days before the hearing, he is missing the records, he is just a human being, and maybe he can’t recall all the incidents he wrote on the day. I also put to the applicant that I might not accept many things that he had written in his statement, because he hadn’t told me about them at the hearing. He replied that maybe he didn’t explain the incidents mentioned in it, maybe because he was pressured, he didn’t know. I consider that the applicant has not reasonably explained the discrepancies in his evidence.
While I accept that the claimed incidents happened as long as 24 years ago and that a person’s memory can be affected by the passage of time, the statement was given only 8 years ago and the differences between the accounts are so significant that I do not consider they can be reasonably explained by issues of imperfect memory. It is reasonable to expect that the applicant would have been able to give a more consistent account of the claimed incidents in his statement and oral evidence at the hearing if they had occurred.
I asked the applicant why he had not referred to the threatening phone calls in his statement, noting he arrived in Australia in June 2016, so if he started receiving the threatening phone calls a couple of months later, that would have been around August 2016, and he lodged the protection visa application in late November 2016, i.e. some 3 months after the weekly threatening phone calls started. The applicant told me he forgot to put it in the statement.
I do not accept this is a reasonable explanation for omitting this from the statement, given the claimed weekly frequency and the claimed seriousness of the threatening phone calls, including threats to harass and break the applicant or his family. It is reasonable to expect that if these had occurred (and were ongoing on a weekly basis) at the time the applicant lodged his protection visa application, he would not have forgotten that this was happening and would have referred to it in the statement.
Applicant’s credibility and findings fact
I accept that the applicant was employed as a police officer in Fiji as claimed, and as evidenced in his police service certificate. However, the significant problems with the applicant’s evidence referred to above lead me to find that the applicant is not a witness of truth and did not give truthful evidence about his claims.
Accordingly, I do not accept:
a.that the applicant was in involved in the claimed incident involving the CRW soldiers; or that the CRW soldiers were brought to the applicant’s police station by the military; or that other military officers came and gave an order to release them; or that he or his colleagues tried to resist [details deleted] or otherwise defied the order to release the CRW soldiers; or that the military forced open the cell and took the CRW soldiers away; or that he voiced his disgust or raised any issues relating to the CRW soldiers with his superiors; or that the applicant was denied a transfer to another station as a result of these claimed events;
b.that the applicant was involved in the claimed incident at [Location 1] where military soldiers took the [equipment]; or that he showed any opposition to the military or was involved in a violent confrontation with the military in relation to this claimed event; or that he was threatened with arrest in relation to this claimed event;
c.that the applicant was involved in a team of officers set up [for a political purpose]; or that he attended a briefing with this team; or that he appeared during police interviews and interrogations [for a political purpose];
d.that the applicant was suspended from work following an accusation that he stole [money], or following an accusation that he [incorrectly treated a prisoner];
e.that the applicant received any threatening phone calls after coming to Australia;
f.that the applicant ever voiced any opposition to military or government injustice or brutality, to senior officers or anybody else; or that he is or was perceived as a threat to military or police beliefs or ideologies; or that he was silenced; or that he experienced threats that he and his family and children would be harmed; or that he was threatened that his position with the police force would be lost; or that he was subjected to torture, humiliation, any acts of physical harm or unfair penalties; or that he was denied any other requests or opportunities in relation to his work; or that his health conditions were impacted by the claimed events.
In making these findings, I have also considered the various other evidentiary documents filed, but I have given them no weight because:
a.the various articles confirm historical events that happened in Fiji, but do not refer to the applicant being involved in any of those events;
b.the various health records do not link the applicant’s health conditions to any of the claimed events; and
c.the letters of support, police clearance certificates, identity documents and [Charity 1] tax receipt do not provide any evidence about the claimed events.
Because I do not accept the applicant’s account of the claimed events, I do not accept the applicant is of any adverse interest to anybody in Fiji, including the military, [four named officials], or any other supporters or associates of Mr Bainimarama. As the applicant has not given any other reasons why anybody would want to harm him in Fiji, I find that there is no real chance that the applicant will face persecution or significant harm if he returns to Fiji in the reasonably foreseeable future.
The second applicant
The second applicant (the applicant’s wife) did not attend the hearing. At the start of the hearing the applicant told me that his wife was relying on his claims but couldn’t make it to the hearing.
Later in the hearing, the applicant told me that what he had been through also affected his wife, because he sometimes abuses her, by punching, swearing and threatening her, and that was the reason she didn’t want to be present at the hearing. He said that he did this because of the pressure that he experienced due to the harm that he had faced.
Following the hearing, I instructed the Tribunal registry staff to attempt to contact the second applicant to see if she wished to attend a hearing in her own right. Her personal contact details were confirmed through departmental records, and staff attempted to telephone her on 3 occasions. The second applicant did not answer the phone, and on one occasion a voicemail was left asking her to contact the Tribunal. The Tribunal also wrote to her directly at her personal email address offering her a hearing. The Tribunal has not received a response from the second applicant.
For the reasons explained above, I do not accept that the applicant has experienced any of the harm that he claimed he experienced. I therefore do not accept that the applicant has experienced any pressure due to facing such harm as claimed. I therefore do not accept the applicant’s claimed reasons for supposedly abusing his wife. Furthermore, because I have found that the applicant is not a witness of truth, I do not accept that he has abused, punched or threatened his wife in any way.
Accordingly, I find that there is no real chance that the second applicant will face any persecution or significant harm from the applicant at any time in the reasonably foreseeable future. Not other claims have been raised in respect of the second applicant in her own right, and she otherwise relies on the applicant’s claims for protection.
Conclusions
For the reasons given above, I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicants protection visas.
Date(s) of hearing: 22 October 2024
Representative for the Applicant: n/a
ATTACHMENT
Criteria for a 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 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.
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 below.
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 below.
Extracts from the 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.
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