2109912 (REFUGEE) - [2024] ARTA 26

DECISION AND
REASONS FOR DECISION
2109912 (REFUGEE) [2024] ARTA 26 (4 NOVEMBER 2024)
Respondent: Minister for Home Affairs

Tribunal Number: 2109912
Tribunal:General Member C Wilson
Date:4 November 2024

Place:Adelaide
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 04 November 2024 at 12:31pm
CATCHWORDS
REFUGEE – protection visa – Myanmar (Burma) – political opinion, ethnicity, religion and membership of particular social group – ethnic minority – forced labour by separatist army and government – protestant Christian – liability for conscription – church, protest and social media activities in Australia not for purpose of strengthening claims – country information – military coup and armed separatist revolutions – civilians killed and detained, churches destroyed and widespread human rights abuses – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
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 29 July 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 Myanmar (Burma), applied for the visa on 16 January 2019. The delegate refused to grant the visa on the basis that they did not accept the applicant had a profile as someone opposed to the government or was otherwise of adverse interest to the authorities in Myanmar.
The applicant was represented in relation to the review.
BACKGROUND
The applicant is a married Christian man of Kachin (Lisu) ethnicity from Kachin state, Myanmar. He married in 2008 and has [children]. He arrived in Australia in November 2018.
Evidence before the Department
The applicant made the following claims in his protection visa application:
·He was born and raised in a village in Kachin state in northern Myanmar. Later his family moved closer to a major city because they were struggling to get food and other necessities where they lived.
·A group called the Kachin Independent Army/Organisation (KIA/KIO) led the Kachin ethnic people in fighting for autonomy. There is an unfinished civil war in his home area between the military government forces and the KIA, causing many Kachin civilians to be internally displaced or lose their lives.
·[In] October 1990 he was caught by soldiers and forced to be a porter for them. He was forced to carry heavy loads including boxes of bullets and food. One of his fellow porters was killed when they were crouched on the ground trying to avoid gunfire during fighting between government soldiers and the KIA.
·When he was caught he was on his way to get medicine for his father who was suffering from malaria. When he got home by the end of November 1990 he learned his father had died. The applicant had to leave school and work on the farm.
·In 1993 there was a government project in his town in which people, including the applicant, were forced to work. He was beaten at work for stopping to drink water. He was forced to work on other construction projects.
·In 2011 and 2012 the conflict between the government forces and KIA worsened.
·In July 2017 he attended a conference with around 700 other people to hear from the KIA/KIO. Whilst there he bought a book on the history of the KIA. When returning home he was stopped and searched by government soldiers. He was accused of cooperating with the KIA and detained. He was told he must choose to either pay a fine of 2 million Kyats ($1,500) or go before the Special Investigation Centre, and warned that if he ran away he would be shot. As he could not afford the fine and feared the punishment he may receive, he ran away the first chance he got.
·He made it to his mother’s house after 3 days, then moved to [Town] to hide at a friend’s house. Inspectors came to his mother’s house looking for him. When civil war erupted in [Town] he returned home but it was not safe for him. He left his family with his mother and fled to Yangon to make arrangements to come to Australia.
·He fears returning to Myanmar because of the civil war and because he will be detained and physically mistreated. He has faced many human rights violations by the Myanmar government.
The applicant was interviewed by the delegate on 21 July 2021, and I have listened to a recoding of that interview.
Evidence before the Tribunal
On 24 October 2024 the applicant provided a pre-hearing written submission and the following evidence and information:
·Supplementary statement from the applicant.
·Screenshots from the applicant’s [Social media] page.
·Statutory declaration from a supporting witness.
·Identity documents from Myanmar including the applicant’s citizenship card, marriage certificate, and list of household members.
·Country information reports from the Department of Foreign Affairs and Trade (DFAT), United States Department of State (USDOS), Human Rights Watch (HRW), Freedom in the World, United States Commission on International Religious Freedom, International Commission of Jurists, and Forum Asia.
·An unrelated decision of the Administrative Appeals Tribunal
In his supplementary statement the applicant provided the following information:
·Since lodging his application in 2019 there was a military coup in February 2021 in Myanmar. He has been involved in 3 public protests against the coup.
·He is a supporter of the National League for Democracy (NLD), the Committee Representing Pyidaungsu Hluttaw (CRPH), and the National Unity Government of Myanmar (NUG) as he believes these groups represent the people of Myanmar. He donates to and volunteers at fundraising events to support the CRPH and NUG.
·He has posted on [Social media] about his involvement in protests and his opposition to the military coup. He believes the military government in Myanmar would be aware of his activities.
·His wife told him the authorities have visited her on 3 occasions asking about the applicant. Most recently they came on 9 October 2024 asking for him and she told them he was in Australia.
·He fears he may be forcefully enlisted in the army if he returns to Myanmar, after new conscription laws came into place in February 2024.
·He fears he will be detained, assaulted, tortured, or killed by the military if he returns to Myanmar,
The applicant’s representative provided written submissions it which it was submitted the applicant had a well-founded fear of persecution and is at risk of significant harm for reason of his:
·actual and imputed political opinion against the military government.
·Kachin (Lisu) ethnicity.
·religion as a Protestant Christian.
·membership of the particular social group ‘persons at risk of conscription’.
A statutory declaration was provided by a church leader at the [Church]. She declares she believes the applicant is a Christian because he has been attending the church since he arrived in Australia in 2019 and contributes to the church community as a teacher, preacher, member of the worship team, and leader of a youth group. She also believes he is of Kachin (Lisu) ethnicity because he speaks the language and knows the culture of the Kachin (Lisu) people. She has personal experience as an ethnic Kachin (Lisu) of the persecution suffered by this group, especially for Christians in Kachin state. She also says the applicant is experiencing mental health issues due to the stress of being separated from his family and the circumstances in which his family live in Myanmar.
The hearing listed for 31 October 2024 was cancelled as I was satisfied the applicant had provided sufficient information to enable me to adequately determine the matter on the papers.
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.
REASONS AND FINDINGS
For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims to be a national of Myanmar, and provided copies of his passport and other identity documents as evidence of this. I accept he is a national of Myanmar and find Myanmar is his receiving country.
The applicant claims to be a Christian of Kachin (Lisu) ethnicity from Kachin state. In support of this he provided copies of his citizenship card and household registration which showed both his religion (Christian) and ethnicity (Lisu), and a copy of his wedding certificate which showed he married in a Christian church. His passport shows his place of birth as a town in Kachin state. I give weight also to the supporting statutory declaration from the Church leader in Australia. I am satisfied the applicant is a Christian of Kachin (Lisu) ethnicity from Kachin state as claimed.
The applicant claims to hold a political opinion that is opposed to the current government in Myanmar, and to have been politically active in Australia through attending protests and posting on [Social media] since the coup in 2021. He claims that in any event he will be imputed to be opposed to the current military government for reason of returning from Australia. I have had regard to his statement regarding his political activity, the photographs of him at protest events, and the screenshots from his [Social media] page. The [Social media] posts show him at different protests in Australia against the military regime in Myanmar and there are other posts where he comments on the current situation in Myanmar or shares other people’s posts. I accept the applicant has engaged in political activity protesting against the current military regime in Myanmar.
I have considered the applicant’s motive for engaging in political conduct in Australia, and whether it has been done to strengthen his claims to be a refugee. However, having regard to his claims, his oral evidence at the interview with the delegate in 2021, his recent written statement, and his social media screenshots, I accept the applicant has a political view that is opposed to the military regime. I accept he has been politically active for reasons that include a personal concern for his family and community in Myanmar. I accept he engaged in this conduct otherwise than for the purpose of strengthening his claims to be a refugee.
DFAT reports that Myanmar has been ruled mostly by military regimes and has experienced internal conflict and lengthy periods of international isolation since 1962. Since the applicant came to Australia elections were held in Myanmar in November 2020 in which the NLD won in a landslide. However, the military rejected this result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. In response the NLD formed a government-in-hiding known as the NUG. In September 2021 the NUG announced an armed revolutionary struggle against the military regime’[1] Three years later the conflict continues, with the state of emergency imposed by the military regime still in place. According to the UN High Commissioner for Human Rights, more than 4,603 civilians have been killed by the military since February 2021 and more than 20,000 remain in detention for political reasons.[2]
[1] DFAT, Country Information Report Myanmar, 11 November 2022.
[2] UNHCR, Guidance Note on the International Protection Needs of People Fleeing Myanmar, May 2024.
DFAT reports that since the coup in February 2021:
The military regime has made extensive use of criminal charges to suppress dissent and justify mass arrests… Some of those arrested have been sentenced to death, and in July 2022, the military regime began carrying out those sentences.
Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in anti-regime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest). Sources in Yangon told DFAT they had experienced random police searches of their homes and vehicles, some on multiple occasions. Police also make random checks for anti-regime content on individuals’ mobile phones, leading some people to carry a second ‘politically clean’ phone as a precaution. Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.
DFAT assesses anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty.[3]
[3] DFAT, Country Information Report Myanmar, 11 November 2022.
In relation to returnees to Myanmar:
DFAT assesses that, given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[4]
[4] DFAT, Country Information Report Myanmar, 11 November 2022.
DFAT does not specifically report on the situation for members of the Kachin (Lisu) ethnicity but does report racial discrimination is widespread and institutionalised in Myanmar, in a way that privileges Bamar Buddhists over other groups. Many ethnic minorities are reported to experience violence and displacement due to ongoing conflict in their home state or region. Some minority groups suffer frequent violence at the hands of the state, largely on the basis of actual or perceived association with armed resistance movements.[5]
[5] DFAT, Country Information Report Myanmar, 11 November 2022.
In relation to the treatment of Christians in Myanmar, DFAT reported that:
Christians make up approximately 6 per cent of Myanmar’s population. They mostly belong to the Baptist, Catholic and Anglican denominations, along with several smaller Protestant groups. Most members of the Chin, Kachin and Naga ethnic groups are Christian, as are many Karen and Karenni.
The ability of Christians to freely practise their religion in Myanmar is impacted by state policies, community attitudes and ongoing conflict in states with large Christian populations, including Chin, Kayah and Kachin States…
There are reports of security forces deliberately shelling, looting, vandalising and burning down Christian churches during military operations since the coup, as well as commandeering them to use as military bases…
Since the 2021 coup, security forces have targeted Christian church leaders for arbitrary detention, inhumane treatment, kidnappings and extrajudicial killings. At least five Chin pastors have been killed since the 2021 coup. In March 2021, four ministers and seven worshippers were arrested at the Kachin Baptist Convention in Lashio, and allegedly beaten while in custody...
DFAT assesses that Christians in Myanmar face a moderate risk of official discrimination, a low risk of societal discrimination and a moderate risk of violence on the basis of their religion.[6]
[6] DFAT, Country Information Report Myanmar, 11 November 2022.
I acknowledge the DFAT report is from two years ago, however more recently reporting from other sources show little has changed in Myanmar. The United State Department of State reported in 2024 that significant human rights abuses continue under the military regime.[7] Amnesty International reported in 2024 that the human rights crisis in Myanmar has worsened as the miliary regime continues to crackdown on any opposition, with reports of arbitrary detentions, torture and other ill-treatment of detainees, unfair trials, and disappearances.[8] The UNHCR reported in May 2024 that the humanitarian situation in Myanmar has further deteriorated since February 2021. Due to the continuing conflict, widespread violence and serious human rights abuses committed against civilians, the UNHCR urged all States to allow those fleeing Myanmar to access their territories and seek asylum, and respect principles of non-refoulement.[9]
[7] USDOS, Burma 2023 Human Rights Report, 22 April 2024.
[8] Amnesty International, The State of the World’s Human Rights, 23 April 2024.
[9] UNHCR, Guidance Note on the International Protection Needs of People Fleeing Myanmar, May 2024.

Based on the country information from DFAT and more recent reporting from the UNHCR, USDOS and other sources provided by the applicant, I accept the military government in Myanmar continues to suppress dissent. I accept that if returned to Myanmar the applicant would be perceived as an opponent to the current military regime for the cumulative reason of being an ethnic minority Christian returning as a failed asylum seeker after a long period in a Western country, even if his sur place political activity is not known. I rely on DFAT’s assessment that a failed asylum seeker returning to Myanmar from Australia would be at high risk of official harassment, arbitrary detention, and violence. I find the applicant faces a real chance of harm if he is returned to Myanmar now or in the reasonably foreseeable future.
I am satisfied that the harm the applicant fears involves serious harm, as it may involve arbitrary detention, significant physical harassment and mistreatment, or even death. I am satisfied that if he is returned to Myanmar he faces a real chance of persecution for reason of his actual and imputed political opinion as being opposed to the military regime, and that this is the essential and significant reason for the persecution. I find the persecution would involve systematic and discriminatory conduct.
In the applicant’s situation there are not reasonable steps he could take to avoid a real chance of persecution, as he cannot be required to alter his religious or political beliefs, and his ethnicity is an innate characteristic.
As the current military regime is the agent of persecution I am satisfied that effective protection measures are not available and that the real chance of persecution relates to all areas of Myanmar
There is nothing before me to indicate the applicant has a right to enter and reside in any other country such that Australia would be taken not to have protection obligations: s 36(3).
For these reasons I find the applicant’s fear of persecution is well-founded and I find he meets the refugee criterion.
For the reasons given above, I am 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.
Representative:  Dr Nathan Stephen Willis (MARN: 1467692)
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.
…