2105053 (Refugee) - [2025] ARTA 1979

2105053 (REFUGEE) [2025] ARTA 1979 (11 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2105053
Tribunal:General Member C Stokes
Date:11 September 2025

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

Statement made on 11 September 2025 at 3:47pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – business partner illegally invested company’s and investors’ funds then fled – company’s accounts frozen and assets impounded – harmed by investors and debt collectors – fear of arrest, or harm by debt collectors or gangster – consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
LLR24 v MIAC (No 2) [2025] FedCFamC2G 1227
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
2010120 (Refugee) [2025] ARTA 550
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 then Minister for Home Affairs on 8 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 22 July 2020. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations.
On 21 April 2021, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
After the Tribunal scheduled a hearing, the applicant requested that the Tribunal make a decision on the papers.
There are two issues for determination. The first is whether it is appropriate for me to determine the application in the applicant’s absence and without holding a hearing. If, having determined it is appropriate to determine the application, the second issue is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion or the ‘complementary protection’ criterion.
For the following reasons, the Tribunal has concluded that it appropriate to determine the application without a hearing and that the decision under review should be affirmed.
BACKGROUND
Evidence before the Department
In the applicant’s protection visa application lodged on 22 July 2020 the applicant claimed:
a.In 2015, the applicant was betrayed by her business partners who used all the business profit and investors’ funds to invest in a multi-level marketing company. The company went bankrupt and the local Malaysian authorities froze its bank accounts to investigate its involvement in illegal ‘money games’.
b.The applicant’s investors requested a full refund upon learning that their money had been invested illegally. The applicant’s business partner fled leaving the applicant to handle the case.
c.The investors lodged a police report prompting the police to investigate and convict the applicant. The company’s assets were impounded by the authorities.
d.The investors visited the applicant’s house where they harmed the applicant and a family member. The investors also hired debt collectors who visited the applicant’s home with a pistol and harmed the applicant.
e.The applicant made a police report however the police could not catch the debt collectors. Further, the police cannot protect her all the time.
f.The applicant cannot relocate because the authorities can easily track her and she may be killed by the debt collectors.
g.If the applicant returns to Malaysia she fears she will be arrested by the authorities, or, harmed or killed by the debt collectors or the local gangster, both of whom act on behalf of the former investors.
The applicant was not interviewed by the delegate and did not provide any supporting evidence other than a copy of her passport.
The delegate was not satisfied that the applicant claims related to any of the reasons in s 5J(1)(a) of the Act and therefore found she is not a refugee for the purposes of s 36(2)(a) and s 5H(1). The delegate then went on to consider the complementary protection criterion and found that, based on the country information and applicant’s circumstances, the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant would suffer significant harm as outlined in s36(2B)(b) of the Act at the hands of debt collectors and gangsters.
Evidence before the Tribunal
On 21 April 2021, the applicant applied for review of the delegate’s decision. She attached to her application for review a copy of the delegate’s decision and the letter notifying her of that decision. She did not provide any further evidence to the Tribunal.
On 23 April 2021, the then AAT wrote to the applicant acknowledging the application and noting that it the applicant wished to provide material or written arguments for the AAT to consider, she should do so as soon as possible.
On 6 February 2025, the Tribunal sent the applicant a pre-hearing information form to complete within 14 days. That form asks for, among other thing, details about the applicant’s protection claims. The applicant completed this form and restated in it the claims set out in the protection visa application.
On 25 July 2025, the applicant was sent an invitation to a hearing scheduled to take place on 2 September 2025. In that invitation it was explained to the applicant that:
What if I want the Tribunal to make a decision without holding a hearing
You can use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. However, you may still be required to attend the hearing if the Tribunal is unable to determine the issues in your absence. If you request the Tribunal to make a decision without a hearing, and we still require you to attend, we will inform you of this before the hearing date.
Please note that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
On 18 August 2025, the applicant emailed the Tribunal the ‘Response to hearing notice’ indicating that she would not attend the hearing and requested a decision on the papers. Further, the covering email noted:
GOOD DAY TO YOU. I HERE REQUEST THE ART TRIBUNAL TO MAKE A DECISION WITHOUT HEARING INTERVIEW, BUT ART TRIBUNAL PLEASE MAKE A DECISION ON PAPERS.
NOTHING ADDITIONAL EVIDENCE ADD ON. I HOPE YOU CAN APPROVE MY REQUEST.
On 19 August 2025, the Tribunal wrote to the applicant as follows:
I refer to your email dated 18 August 2025 in relation to your application for review.
The Tribunal understands from your email you have requested that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The relevant evidence available to the Tribunal includes the original protection visa claims, the delegate's request for more information under s 56 of the Migration Act 1958 (Cth) (which was not responded to) and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please can you advise whether you have any further information you wish to provide. Please provide a response by Tuesday 2 September 2025.
Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined without a hearing, this does not guarantee you will receive a favourable decision. The Tribunal may also consider your application on a different basis to which the delegate of the department refused your visa, including with respect to whether there is a real chance you will face serious harm at the hands of former investors, debt collectors and/or gangsters.
If you would in fact like the hearing to proceed on 2 September 2025 please let us know as soon as possible, and no later than Tuesday 26 August 2025, so that the Tribunal can ensure the hearing arrangements remain in place.
If you have any questions or any problems opening the document/s attached to this email, please contact us immediately at [email protected], or call 1800 228 333.
The applicant did not respond, and the hearing was subsequently cancelled.
On 2 and 9 September 2025, the Tribunal attempted to telephone the applicant to check that she wished to proceed without a hearing. The applicant did not answer and messages were left on each occasion asking her to return the Tribunal’s call about her request for a decision on the papers.
REASONS AND FINDINGS
Decision without a hearing
For the reasons that follow, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Namely, the Tribunal can reach a decision without holding a hearing when the applicant requests this (see s 106(3)(b)(ii)) and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (see s 106(3)(c)).
These provisions were considered by the President and two Deputy Presidents of the Tribunal in the case of 2010120 (Refugee) [2025] ARTA 550. I am guided by their decision, and also that of the Federal Circuit and Family Court of Australia in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at [59] and [60] and in LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [70]-[77], [83], [87] and [90].
As set out above, the applicant requested on 18 August 2025 that the Tribunal make a decision on the papers via the ‘Response to hearing notice’ which she submitted from her email address, with a copy of her passport attached as well as a covering email reiterating the request. I am satisfied that the applicant has made a clear and unambiguous request, and consents to, the Tribunal making its decision without holding the hearing of the proceeding.
I must also consider that the issues for determination in the proceedings can be adequately determined in the applicant’s absence. In this case, the issues for determination are readily identifiable.[1] They are whether the applicant is 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: s 36(2) of the Act. In particular, whether the applicant’s claims to fear harm at the hands of investors, debt collectors and/or gangsters is genuine.[2]
[1] 2010120 (Refugee) [2025] ARTA 550 at [42]-[43]
[2] LLR24 v Minister for Immigration and Citizenship (No 2) [2025] FedCFamC2G 1227 at [87]
I am satisfied that the issues for determination, can be adequately determined in the applicant’s absence in this case. The Tribunal has a copy of the Department’s file which includes a copy of the applicant’s Malaysian passport and her protection visa application form, which contains the applicant’s biographical information and the claims for protection. Further, the applicant provided the Tribunal with a copy of the delegate’s decision with her review application. She has not provided any further evidence, or arguments to the Tribunal but did reiterate her claims to fear harm at the hands of investors, debt collectors and gangsters in the pre-hearing information form. As outlined above, the applicant has been provided with multiple opportunities by the Department and Tribunal to provide further evidence and information as to her claims. Despite being offered those opportunities, and the Tribunal informing the applicant that there was no guarantee of a favourable decision on the papers as well as that the Tribunal may consider the application on a different basis to which the delegate of the department refused the visa, the applicant has made it clear that she has no further information or evidence to provide the Tribunal and has made it clear she does not wish to attend a hearing.
On the information before me, I can be satisfied as to the applicant’s identity, determine her receiving country and form conclusions as to whether the applicant’s claims are genuine. I am therefore satisfied in the circumstances that the issues for determination in the proceeding can be adequately determined, in the absence of the parties to the proceeding, on the evidence available to the Tribunal. I am also satisfied that the applicant has been fairly put on notice that the issue as to whether there is a real chance she will face serious harm at the hands of former investors, debt collectors and/or gangsters is in issue.
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.
Country of reference: Malaysia
The applicant claims to be a national of Malaysia and was assessed by the Department on that basis. She travelled to Australia on an apparently genuine Malaysian passport. The Department file contains a copy of her passport. I accept the applicant is a Malaysian citizen and have assessed the claims against Malaysia as the country of nationality and the receiving country.
Claims for protection
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[3]
[3] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70
The claims made by the applicant in the protection visa application lack detail. The extent of the detail regarding the applicant’s claims for protection is that which is set out in her visa application. This lacks sufficient detail to satisfy me of the credibility of the applicant’s claims. Although the applicant stated she had a business with business partners, she did not give details as to what type of business it was, how she came to be involved, who her business partners were, who the investors of the business were, what type of assets were held by the company (which were apparently subsequently frozen) and how it was possible for her business partners to use the business profits and investors’ funds to reinvest in a different enterprise. The applicant has also not provided any information in relation to what investigations were undertaken by the authorities nor as to what conviction was obtained against her, including what the sentence or judgment was. The applicant has not specified what amount of money the investors are seeking recovery of via debt collectors and gangsters or provided details as to whether she paid them anything and, if so, how much remains outstanding. The applicant has also not provided details as to when and how she and her unspecified family member were harmed by the debt collectors and gangsters. Although the applicant claimed she made a report to the police, she has not provided details of when and how she made the report nor why the police were unable to ‘catch the debt collectors’.

The applicant has also not provided any corroborative evidence in relation to her claims, such as documentary evidence of the business, court proceedings, investigations by the authorities, communications from investors seeking refunds, criminal charges and convictions, police reports or statements from her family members who are aware of the applicant’s claimed circumstances, which one would expect would be able to be provided - particularly given the applicant claims her family were harmed and advised her to leave.
Given the applicant’s limited evidence, and her choice to not provide further details and evidence to the Department and Tribunal despite being given opportunities to do so, I do not accept that:
a.the applicant was involved in a business where she was betrayed by business partners who used the business profit and investors’ funds to invest in a multi-level marketing company;
b.the company went bankrupt, the local Malaysian authorities froze its bank accounts to investigate its involvement in illegal ‘money games’ or that the company’s assets were impounded by the authorities;
c.the investors requested a full refund or that they visited the applicant’s house and harmed her and family member
d.the investors lodged a police report prompting the police to investigate and convict the applicant; or
e.the investors hired debt collectors who visited the applicant’s home with a pistol and harmed the applicant.
Accordingly, there is insufficient information[4] for me to be satisfied the applicant faces a real chance of persecution or that there are substantial grounds for believing there is a real risk of significant harm at the hands of investors, debt collectors and/or gangsters.
[4] The Tribunal may find that there is sufficient information before it to enable it to adequately determine the issues in the proceeding, yet still determine that there is insufficient evidence to substantiate the applicant’s protection claims: 2010120 (Refugee) [2025] ARTA 550 at [60] and EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 at [69]
I am not satisfied, on the evidence before me, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, I am not satisfied that the applicant is a persons in respect of whom Australia has protection obligations under s 36(2)(a) of 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:         N/A
Representative of the applicant:     N/A
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.
…