1928411 (Refugee) - [2025] ARTA 810

1928411 (REFUGEE) [2025] ARTA 810 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928411
Tribunal:General Member M Simmons
Date:3 March 2025

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 03 March 2025 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – Fiji – human rights and political freedom – stress and depression – application prepared by another person, with applicant unsure of some details – multiple departures and returns – no past harm or harm to family members since departing – most extended family members in Australia – late claim of assistance to militant soldiers – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB (2013) 210 FCR 505
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 September 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 Fiji, applied for the visa on 19 December 2018.
The applicant appeared before the Tribunal on 29 January 2025 to give evidence and present arguments. Present with his was his support person.
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 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 in the attachment to this decision.
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
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.
Protection claims
In the visa application, the applicant provided the following details as to why he left Fiji and does not wish to return there:
·I left Fiji because I was not happy with the way I was mistreated. I was deprived of my basic Human rights and this was very depressing for me. I felt that I was living in a vacuum and was suffocating because there were too many restriction placed on me and my family by the government. There was the restriction on the freedom of expression, we were not allowed to comment on the government and only positive comments were accepted. I was feeling sick and was getting depressed by the fact that I no longer have a voice and that there was little freedom in Fiji. I therefore do not feel safe living in Fiji. I am afraid for my safety and the safety of my family.
·Coming to Australia was an eye opener for me since 2016. I realized that there was a difference in life. There was something called democracy and that it was practiced in Australia. I also realized that there was something called the practiced of human rights I realized that we can challenge the Government of the day and criticize it and its policies. I was feeling sad because in Fiji freedom of expression is restricted and we the common people do not have a voice.
·If I return to Fiji I know that my life will be shortened because of the situation the country is in. In Fiji I am deprived of my basic human rights. I no longer can expression my opinion of the government. The psychological stress that I experienced before leaving Fiji would come back resulting in my becoming more aggressive and this has had very negative results no my relationship with all those at home, including my two children. I was easily angered and was very depressed. I was a youth when the first coup in 1987 took place. I have experienced all the military take over and the changing government and constitution since 1987. I now am afraid and have psychologically suffered and became depressed because my rights have been taken away from me. I cannot talk freely to other, including my close relatives fearing that someone might hear my complains and disgruntled views about the government and I would be taken to the police station and penalized - punished and beaten by the law enforcers.
·This is not the Fiji I use to live in and one that I enjoyed living in. I have become very aggressive and could not control my temper because of the environment around me. My children and my family suffer because I let it out on them and at times I feel like taking my life or dong something crazy to the government leaders. I know that it is not good and coming to Australia has helped me recover a little and is starting to bring sanity into my life.
·My right as an individual has been deprived and suppressed. I do not want to let my family suffer and go through these ways of life as it will have negative impact on my family's future. When I came into Australia to spend time with my friend I saw the differences and experienced are very different atmosphere in this country, one that I used to enjoy before the 1987 Military take over and later between 1993 and 2000. 1 now see the situation in Fiji as one that is not safe for my family. I do not feel safe and my family is not safe in Fiji.
·Some of my rights that have been suppressed and this have resulted in the situation becoming a life threatening situation for me. One of the rights I have been deprived of is my freedom of speech. I cannot criticize the government of the day because it will result in my being arrested and taken to task by the special joint force of the Police and the Military. People are now taken to court and charged for talking against the Government of Fiji. I now criticize the government and am able to speak freely about the government from this end when I now reside in Australia.
·I experienced psychological stress and mental depression while I was in Fiji. Seeing the way we the indigenous people were treated and how I could not stand and challenge the government had mentally affected me. I was under a lot of pressure that almost resulted in my committing suicide. It was that bad that I had to live the country otherwise I would have taken my life.
·I did not seek advice from outside my family. My extended family and friends were however useful in encouraging me and keeping me in the right direction through sound advice and fellowship. There was no assistance available from outside and I did not know of any available to support us facing this type of problem.
·I cannot move to any other part of the country because this problem is a major problem and it is the government that is a threat to me and my family. I do not have any other place to move to, so I would rather be on my own and do not move to another place in Fiji.
·I have been very vocal now as I am in a good country. Australia, where freedom of speech is exercised. I am able to challenge the Fiji government and its policies and it makes me feel better as I am now free to exercise my Right. I am afraid for my life, my safety and the safety of my family if we return to Fiji. The mistreatment in Fiji is continuing and if! go back home I will continue to suffer and my family will be the victimized. I do not want this to happen. There is no one to protect me in Fiji because the vary body to protect me, the government, is the one that is making me suffer psychological stress and mental depression. NGO are toothless in this situation because they also safe guard their organization and they are limited by the government
·I did not ask for help from other places. Because I did not know of any that was available. I was also afraid because the government might come after me. My church group was very useful in providing a space for counseling and spiritual growth that helped me greatly. Relocating in Fiji is not an option because it is a small country and this problem is a nationwide problem. It does not matter where I settle with my family the situation will continue to worsen.
During our discussion the applicant told me that someone called [Ms A] prepared his visa application. He paid her to submit the application. She also submitted his application to the Tribunal. He has been unable to contact her recently. He is unsure if she is a migration agent or lawyer.
The applicant told me that he was unsure of some details of his visa application, because [Ms A] prepared it and did not explain it all to him. He did, however, read the delegate’s negative decision. He said that he understood his application was refused because “the government has changed now”. He told me that there was nothing in his visa application that he wished to change or update.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and background
The applicant has submitted the biodata pages of a Fijian passport. This document bears an image with his likeness and reflects his claimed identity. I have no concerns as to the authenticity of this document.
I accept that the applicant is who he claims to be, and that he is a national of Fiji. Fiji is the receiving country for the purpose of this assessment
Experiences in Fiji
The applicant told me that his wife [and adult children] continue to reside in Fiji. He indicated that he is in contact with his family and that as far as he is aware, they do not have any problems in Fiji.
He has [siblings] and his mother all of who reside in Australia. They are all Australian citizens, having migrated in [Year] along with his now deceased father. He is the only one who did not migrate as he was married and was starting his own family in Fiji at the time.
The applicant first travelled to Australia in 2016 for his father’s funeral. He made a number of trips between Fiji and Australia between 2016 and 2018, before applying for protection.
I asked the applicant why, if he had problems in Fiji, he returned to Fiji a number of times between 2016 and 2018. He said he did not know what to do and he was advised to go back to Fiji. I expressed that him deciding to return to Fiji during this period did not suggest to me he was fearful of being harmed in Fiji at that time. He did not respond.
I asked whether, if he feared harm in Fiji at that time, he could have explored ways to remain in Australia with his Australian relatives. He suggested he did not want to overstay his visa so he just went back to Fiji to figure out a way to stay in Australia. I asked why, given he has many siblings who are Australian citizens via migration and could offer some guidance and assistance, would he need to return to Fiji to work out how to remain in Australia rather than making arrangements for this while he was onshore. He did not respond. When asked whether he could have applied for a protection visa in 2016, he suggested that he thought he could just go back to Fiji for a short time, and when he did go back to Fiji “nobody knows”.
The applicant told me he “applied for a protection visa because of the political things happening in Fiji at that time. I had some problems with the army, so I said I think I better just stay here”.
When asked what he fears may happen on return to Fiji, the applicant replied, “I don’t know what will happen maybe something will come up”. When pressed for detail he suggested that some people who he knows from before were arrested. He added that these were Counter Revolutionary Warfare (‘CRW’) unit Soldiers. They were arrested in “2015, 2016 or 2017”.
The applicant told me he was never harmed while he was in Fiji, but that he “knew he was wanted” so he “stayed low”. This was in 2015, 2016. He told me that he thinks some soldiers who arrested some “other people” were after him, and that he “just knew they were going to come for him”.
I noted that during this time he remained in his same employment, working as [an occupation], which was not suggestive of him seeking to hide from anyone. He told me that he stopped working as [an occupation] in 2015. I put to him that his visa application states he was working as [an occupation] until April 2017.
I asked if they would be able to find him at his employer, and he replied that “after 2016 they found out I was involved in the CRW soldiers”. I asked him to explain what he meant by this. He said that when the army took over the CRW soldiers camp, he gave the CRW soldiers food and a place to hide out. I asked him when it was that he did this and he confirmed that he started helping them in 2016. He indicated he was not a member of the CRW forces. I asked about the current situation for CRW forces. The applicant said he believes some are in prison while others have been let out.
The CRW and his support for them was not mentioned in his visa application at all. The applicant suggest it was because [Ms A] wrote it all and must have left it out. I noted that she included comprehensive information that was personal to the applicant in other regards, such as detailing his large family, and his school, work and address history, all of which he confirmed was accurate. I asked why she would include so much personal information form the applicant but not mention his CRW claims. He replied that she said not to mention the CRW.
I put to the applicant that media reporting indicates that the CRW forces were disbanded in 2000.[1] The applicant responded: “that is what they say but I don’t think so” because “I hear things”. He also added that he does not trust the media.
[1] RNZ, ‘Fiji military denies setting up new elite special force’, 12 February 2003, >
I noted that the CRW was not raised in the delegates decision, which the applicant said he had read and understood. Given that I asked why he would not have raised this omission with the Tribunal early. He replied that he did not know.
The applicant told me he was never politically active in anyway. He was not involved in politics in Fiji, or in Fijian politics while in Australia. I noted that his visa application states he has been very vocal while in Australia and that he challenges Fijian policies and the Fijian government. He indicated that this is not accurate and he does not know why that is written in his application.
I invited the applicant to explain the current situation for indigenous Fijians. He responded that he does not know about that. He confirmed he does not have any concerns in the future in Fiji related to the treatment of indigenous Fijians.
Despite what is raised in his application, he confirmed he has not previously experienced suicidal thoughts, psychological stress or mental depression. He has not received treatment or any mental health concerns. He indicated he did not know why this was raised in his application. I noted that this was raised in the delegate’s decision as well, and asked if there was a reason he had not sought to correct these details earlier. He replied “no”.
I asked the applicant if he believes he has a future chance or risk of harm in Fiji, he responded that he would not know. At the end of our discussion the applicant confirmed that he had told me everything he wanted me to consider when I was making my decision.
Findings
The applicant provided mostly brief and imprecise details in response to questions about his past experiences and future fears in Fiji, many of which did not accord with those set out in his visa application. I did not consider his account to be persuasive or reliable.
I do not accept that the applicant ever assisted CRW soldiers while in Fiji or that he was ever of any adverse interest to any group or person for this reason. As noted above, while the applicant claims he assisted the CRW on one occasion sometime between 2015 and 2017, media reporting indicates the group was disbanded in 2000. Despite claiming he was pursued after offering the soldiers support, he travelled back to Fiji from Australia a number of times in the years after this incident, which I consider is not supportive of him fearing harm in that country at that time for any reason. The CREW claim was not mentioned in his visa application, despite a variety of other details being included which the applicant now asserts do not relate to him. The applicant told me that he read and understood the delegates 2019 decision when it was made, as such he would have been aware from that point that the CRW soldiers claim had not been considered by the primary decision maker. However he did not seek to advance this claim until 2025.
In his oral evidence to the Tribunal, the applicant confirmed that he does not know about the situation for Indigenous Fijians but that he does not personally fear harm in Fiji for this reason. His evidence was that he is of mixed European and Fijian ancestry. The applicant also confirmed he has not previously experienced suicidal thoughts, psychological stress or mental depression and that he does not fear harm in Fiji in the future for these reasons. He told me, contrary to what is presented on his behalf in his application, that he has not been involved in Fijian politics either while in Australia or Fiji. He suggested that [Ms A] included these details in his application without his knowledge.

Given his oral evidence, I accept that the applicant does not fear harm in Fiji in the future due to indigenous rights being eroded. I find he has not previously experienced suicidal thoughts, psychological stress or mental depression and that he does not fear harm in Fiji in the future for these reasons. I accept that he has not been involved in Fijian politics either while in Australia or in Fiji.
I do not accept that the applicant was previously harmed or threatened while in Fiji, or that he was of any adverse interest to any person or group when he left that country. The information before me does not suggest that he has developed a profile of interest in Fiji subsequently for any reason, and I do not accept that he has.
Does the applicant satisfy the refugee criterion for protection?
For the reasons set out above. I do not accept that the applicant was of adverse interest to any person or group while resident in Fiji, or that he has become so since his departure.
I do not accept that the applicant faces a real chance of any harm from any person or group, including treatment amounting to serious harm, for any reason were he to return to Fiji in the foreseeable future. I have not accepted any of the applicants protection claims including in relation to his support for CRW soldiers, fears related to indigenous rights, asserted prior suicidal ideation and other mental disturbances, or his claimed prior political activity in Australia and Fiji. It follows that he does not face any chance of harm for these reasons in the future in Fiji.
The applicant does not face a real chance of any harm, including treatment amounting to serious harm, in the reasonably foreseeable future for any reason were he to return to Fiji.
I am not satisfied that the applicant has a well-founded fear of persecution for any s 5J(1)(a) reason. The applicant is not a refugee per s 5H.
The applicant does not meet the criterion in s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
A ‘real risk’ and ‘real chance’ involve the same standard.[2] As set out above, I have not accepted that the applicant faces a real chance of any harm from any person or group in the reasonably foreseeable future in Fiji for any reason. It follows that the applicant also does not face a real risk of any harm, including treatment amounting to significant harm, in Fiji in the reasonably foreseeable future for any reason.
[2] MIAC v SZQRB (2013) 210 FCR 505.
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 a receiving country, there is a real risk that the applicant will suffer significant harm.
The applicant does not meet the complementary protection criterion in s 36(2)(aa).
Conclusions
For the reasons set out above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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 not to grant the applicant a protection visa.
Date of hearing:       29 January 2025
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.
…