2015730 (REFUGEE) - [2024] ARTA 228

2015730 (REFUGEE) [2024] ARTA 228 (10 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015730

Tribunal:General Member S. Zelinka
Date:10 December 2024
Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 10 December 2024 at 4:20pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – detention by the religious police – strict family adherence to Islam – secretive relationships – fear of forced marriage – fear of physical violence – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
SZFDV v MIAC (2007) 233 CLR 51
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 13 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
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 (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.
The applicant who claims to be a national of Malaysia applied for the visa on 21 December 2017. The delegate refused to grant the visa on the basis that “there is no reliable information before me to indicate that the applicant would face a real chance of persecution on return to Malaysia because he is a gay man, or perceived as a gay man.”
The applicant appeared before the Tribunal on 3 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a witness, [named].
The applicant was represented in relation to the review.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND
The applicant is [an age]-year-old single man of Malaysian ethnicity and the Islamic faith. He arrived in Australia in September 2017. He said his hometown was Kuala Lumpur and that he had worked as [an occupation 1] from 2004 until his departure.
Claims
The applicant’s initial claims in the protection visa application (PVA) were that he had been aware that he was attracted to the same sex since he was 14 and that he and his partner were caught in a hotel by the religious police in 2016 and summoned for ‘an immoral act’. When first contacted by the Tribunal in pre-hearing correspondence he affirmed that his claim for protection was his homosexuality.
Shortly before the Tribunal hearing, the applicant made a written submission, again asserting that his claim was that he feared prosecution and serious harm in Malaysia from the Government and others for reason of his homosexuality. He also noted his particular context of being Muslim and having a father who is an imam.
In his submission, the applicant noted that although his claim about homosexuality was real, he had not been wholly truthful in his PVA. He said that when he applied for protection, he understood something about the grounds which could support a claim, including homosexuality. However, as his English at the time was poor, he was being assisted to write the PVA by a Malaysian friend. The applicant was too ashamed to disclose to this friend that he was gay so he told the friend to make a ‘false’ claim about homosexuality whilst assuring his friend that he (the applicant) was, in fact, straight. Hence the friend made up the details about the applicant’s teenage experiences and being caught later by the religious police.
Early awareness of homosexuality
In the submission to the Tribunal, the applicant said that his parents divorced when he was young; that he had been raised with his [siblings] by his father from the age of [age]; and that his father was an imam. At hearing, he said that dissension at home between his parents had caused him to be placed with his grandmother at [a younger age]. He did not return to the family home until he was [age] by which time his parents were divorced and his father had remarried. It was a religious household with his father requiring strict adherence to Islam. The applicant became well aware of the religious strictures against homosexuality. As a teenager, the applicant already knew he was attracted to the same sex but he felt guilty about this and never disclosed it.
The applicant left home in 1999 at the age of [age] and pursued a career as [an artist] to the detriment of his [studies] which he failed to complete after winning [recognition as an artist]. [He gained] a public profile and made him hyper-sensitive about exposure as a gay man. Any interactions he had with other men were very secretive.
Despite his caution, the applicant said he had several incidents which gave him a real fright. The worst occurred whilst he was at college doing his [diploma] and had travelled with another gay male from college to a resort outside Kuala Lumpur. As they were together in a car parked in what they had thought was a very private spot, they were discovered by two members of the religious police who took a prurient interest in what they were doing. The applicant and his friend were humiliated; they also had their details on their ID cards recorded. The religious police indicated that they would accept a bribe and the applicant gave them all the money he had. There have been no consequences from that encounter.
Adulthood in Malaysia
The applicant said in his written submission and at hearing that he gave up his [artist] career in 2014 and began working as [an occupation 1] at a [business 1] run by one of his [relatives]. By this time, his [siblings] were either married or about to be so – all were married by the time the applicant left for Australia. This prompted endless questioning by the applicant’s father, as well as his mother on the rarer occasions he saw her, about when the applicant himself would get married. The applicant was in his first real relationship with a man who got married to disguise his homosexuality: this relationship continued in its very secretive fashion for three years until the applicant left Malaysia. The applicant asserts that no-one in his family or community had learned about his homosexuality while he was in Malaysia: he told no-one. Indeed, he stated that he has still not told anyone in Malaysia about his sexual orientation.
In Australia
In his written submission, the applicant stated that he was arrested in [2020] on a drugs charge and served time in gaol, being released [several] months later in [later] 2020. He stated that whilst in gaol, some other Muslim prisoners began threatening him as they believed he was gay. He asked for protection in prison which he received. He stated that he has completed programs organised by the Court, has ceased any drug use, and provided a letter of support from the director of a charity which assists with homelessness. The Tribunal asked the applicant about this period.
The applicant said that on arrival in Australia, he settled in [City 1] where he knew some Malaysians from whom he hid his sexual orientation (even asking his friend to ‘fabricate’ a claim about homosexuality on the PVA: see paragraph 15 above). However, away from his Malaysian friends, he sought out some homosexual encounters and at some point was introduced to drugs. He was arrested in Sydney when he had travelled there to make a deal. During his time in gaol, he attended Muslim prayer times, finding that the other Muslims were Lebanese prisoners. They became suspicious of him and asked if he were gay which he denied. However, they continue to ask and the applicant felt unsafe. He spoke to a prison officer and was moved into protection; then transferred to another gaol, still in protection. On his release, he returned to [City 1] and experienced some difficulties and relapses before he decided to turn his life around.
The applicant came to Sydney in October 2022 and to the charity called [Agency 1] which, according to its website, “[addresses] homelessness” by providing temporary and longer-term housing and employment programs. The [Position 1] at [Agency 1] has written a supporting letter to the Tribunal in which she states that the applicant has ‘excelled within our program’ and ‘is still in employment’. The applicant also submitted another complimentary letter of support, this one from the co-ordinator of the LGBTQI+ [programs] at [Agency 2], who noted that the applicant had been involved with them for over a year. The letter states that he is an ‘integral member of the group’ and ‘clearly takes comfort in being with others with a similar lived experience’. The co-ordinator states that the applicant ‘will be invited to attend all future meetings’.
Since being in Australia, the applicant had a four-year relationship with a man but it is now over. The applicant has since met other men including through social media sites devoted to gay dating. He attends clubs and has more recently become involved with the LBGTQI+ group described above. The Tribunal heard from a witness, a friend of the applicant’s from [City 1] – one who was not involved in the drug scene there into which the applicant was drawn. His testimony confirmed the applicant’s account that he has been away from that [City 1] scene for over two years; that he is now working and has his life together. The witness knew where the applicant was living and that he worked full-time. He knows about the applicant’s involvement with [Agency 2]. The witness himself is Anglo-Australian and has never been to Malaysia, although he has heard about it and its restrictions from the applicant.
Return to Malaysia
The applicant concluded his written submission by saying that he if he returned to Malaysia, he would not be able to live as an openly gay man as he does here. His family would force him to marry. The stigma against gay men is severe in Malaysia which would cause psychological harm. He also fears physical violence and assaults from individuals (including family) as well as the State and notes there is no effective protection in Malaysia. The applicant spoke in the same vein to the Tribunal. He said he genuinely feared that his father would kill him if he ever found out that the applicant was gay, such would be the shame on the family. The applicant said that the constant pressure to get married, pressure from both his mother and father, would be unbearable. So too would the idea of having to completely hide his character – his sexuality – especially now after experiencing ‘freedom’ to be himself for the last seven years.
Furthermore, the applicant noted that good health practices such as he undertook in Australia – tests and preventative measures for sexually transmitted diseases – would not be accessible in Malaysia. He said that a popular singer in Malaysia had gone to hospital for an HIV test – something which should be completely confidential – and yet it had appeared almost immediately in the popular press, with the conclusion that the singer was gay (something the singer had always been at pains to keep secret).
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
On the basis of the applicant’s passport, a copy of which is on file, and the applicant’s testimony, the Tribunal is satisfied that he is a national of Malaysia and that Malaysia is the receiving country in this case.
On the basis of the applicant’s consistent testimony, and corroboration from his witness and the supporting letter from the LGBTQI+ group co-ordinator, the Tribunal accepts that the applicant is a homosexual man who in Australia lives an openly gay lifestyle.
Particular social group
A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. Not only must such persons exhibit some common element but the element must unite them, making those who share it a cognisable group within their society.[1] Homosexual men in Malaysia are recognised as a group: men who have sexual relations with other men are recognised in law because same-sex acts are illegal and criminalised by 52 different laws across Malaysia. Homosexuals have been denounced by successive Malaysian Prime Ministers[2] and have been identified by different authorities or communities as candidates for ‘rehabilitation’ or re'-education’ programs aimed at changing sexual orientation of gender identity.[3] Relevantly for this applicant, ‘while government stances on LGBTQI+ issues apply to all people within Malaysia, the impact is more pronounced for Malay Muslims, as expressions of LGBTQI+ identity constitute both syariah and penal code offences’.[4]
[1] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264-266, 285.
[2] DFAT, Country Information Report: Malaysia, 24 June 2024, para. 3.129
[3] DFAT, op.cit., para.3.132
[4] DFAT, op.cit., para. 3.128.
The Tribunal is satisfied that homosexual men in Malaysia constitute a particular social group within the meaning of 5L of the Act and that the applicant is a member of this particular social group.
Past harm
There are no claims, nor does the evidence suggest, that the applicant suffered serious harm in Malaysia of the sort that can be prescribed by the authorities for homosexuality. He was not sent to conversion therapy, nor was he arrested, charged and punished (such as by imprisonment, caning or fines) for any homosexual acts. He was confronted on one occasion only by the religious enforcement police whom he was able to pay off. However, the fact that there was no physical harm does not mean that the applicant suffered no harm in the past. He had to suppress his true nature for many years, which meant that he had to continually be on his guard and to lie to his family and friends. He could not enjoy a social life of the sort enjoyed by other teenagers or young adults in his traditional community – meeting potential partners, getting married, being respected and taking his place in the family and community hierarchy.
Future harm
However, the refugee test is a forward-looking test and the Tribunal must consider what would happen if the applicant were to return to Malaysia. The applicant said he would face great difficulties with his family in explaining why he was not married at the age of [age] and continuing to reject the potential brides being offered to him by the family. He felt that if his father ascertained the reason for this – that the applicant was gay – he would be killed. His father, an imam, would be appalled that his son had transgressed against Islamic strictures. More broadly, the applicant fears that his sexual orientation would be uncovered sooner or later and that this in itself could lead to harm. As noted above at paragraph 28, there are 52 laws in Malaysia that criminalise different forms of LGBTQI+ behaviour.
Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which incudes penalties of whipping and up to 20 year in prison. Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression.[5]
[5] DFAT, op.cit., para. 3.127
The Tribunal notes that the applicant has been leading an openly gay life for seven years in Australia. This includes going to gay clubs and using social media platforms such as Grindr to meet other gay men. The Tribunal notes country information that ‘authorities regularly ban or otherwise restrict LGBTQI+ material’ and that ‘people stopped by police have sometimes had their phones checked for LGBTQI+ related messages and dating apps such as Grindr’.[6] Given that the applicant has been away from the need for secrecy for seven years, there is a real chance that he may continue to act in the more overt manner to which he has become accustomed. In this case, there is a real chance that the applicant will be noticed adversely by the Malaysian authorities and be charged and punished. The Tribunal is of the view that the punishment for homosexual acts constitutes serious harm.
[6] DFAT, op.cit., paras. 3.134 and 3.136.

In relation to the issue of the applicant’s desire to live openly as a gay man, rather than keeping his homosexuality secret as he did in Malaysia until the time he left that country, the Tribunal notes the decision of the High Court:
It would not be a ‘reasonable’ adaptation of the behaviour of an applicant … to expect the applicant to return to the country of nationality and to abdicate, or repudiate, a fundamental right of the kind included in the list of Refugee Convention-related grounds of ‘persecution’.[7]
[7] SZFDV v MIAC (2007) 233 CLR 51 at [33] per Kirby J referring to Appellant S395/2002 v MIMA (2003) 216 CLR 473 at [40], [80].
Being homosexual is fundamental to the applicant’s identity or conscience: it is of central importance to him. The Migration Act at s 5J(3)(c)(vi) makes it clear that modifying one’s behaviour in order to avoid a real chance of persecution is not a reasonable option where such modification would ‘alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status’.
Conclusion
The Tribunal is satisfied that if the applicant were to return to Malaysia and live as a gay man as he has done in Australia then there is a real chance that he would come to adverse attention as a homosexual. His behaviour would be unlawful under both the Federal penal code and under the religious syariah laws widely applicable in state-based jurisdictions. There is a real chance that serious harm would befall him and the reason for that harm is his membership of a particular social group constituted by homosexuals in Malaysia. The applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act. The harm he fears (the federal and state laws) operate across the receiving country and therefore relocation is not an option. He cannot be reasonably expected to modify his behaviour as noted in the paragraph above.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for one of the five reasons set out in the Act. It follows that he meets the definition of ‘refugee’ in s.5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing:    3 December 2024
Representative: Gretel Emerson
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.
…