2112364 (Refugee)

[2024] AATA 2683

2112364 (Refugee) [2024] AATA 2683 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2112364

COUNTRY OF REFERENCE:                   China

MEMBER:Rachelle Johnston

DATE:5 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 April 2024 at 11:44am

CATCHWORDS
REFUGEE – protection visa – China – decision on the papers – commenting on issues in the news – social media activities – arrested by the police – insufficient evidence before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 425
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of China, applied for the visa on 2 March 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

   CLAIMS AND EVIDENCE

   Claims and evidence before the Department 

   Protection visa application

3. The applicant lodged a protection visa application on 2 March 2020. In that application she provided the following information, among other things:

   ·     She was born in [year] in Guangxi, China.

   ·     When in China she lived in [District 1], Liuzhou City, Guangxi Shuangzu Zizhiqu.

   ·     She speaks, reads, and writes Mandarin and English.

   ·     Her religion is Christianity, and she is Han Chinese.

   ·     Her mother and father are Chinese citizens.

4. The applicant makes the following claims in her protection visa application form:  

   ·     In 2017 she had a daily habit of commenting on issues in the news. The Uygur people she had met were from a different class in society and as she learnt from their stories, she realised how hard their lives are and how unfair the Chinese government treats them. She felt she should do something, so she started to post pictures she took from them and made comments on the internet. She wanted to let more people know what was really happening to the Uygur people.

   ·     The police soon found her. All her internet accounts on different websites were blocked, which prevented her from posting more pictures or comments. They came to her and told her that if she tried to post something similar again on the websites she will be put in gaol.

   ·     In meantime she found some Uygur were sent to the ‘Learning School’ to study how they should be behaving. She didn’t know what she could do to protest. She thought of using the internet to seek help from the public.

   ·     She registered new accounts in Weixin and Weibo to post and tell people what happened to her. She hoped lots of people would learn of her grievances and support her.

   ·     She was arrested at her home in front of her family members. The crime was releasing faulty information to the public.

   ·     She was kept in the police station for three days without food, drink, or sleep. Eventually she admitted all the non-exist crimes they put on her on paper and set herself free from the police station.

   ·     Knowing she had no nope in China as she would be watched by the police, she could not do business or look for a job. She cannot complain as there is no one she can complain to. She decided to apply for a visitor visa to escape to Australia and overstayed her visa. She cannot go back to China and wants protection from the Australian government and to start her new life in Australia.

   ·     If she returns to China, she may be sent to the ‘Learning School’. It is not easy to move to another place under the watch of the government. There is no way to relocate because the Chinese government have a very wide network across the whole country. The Chinese government will not protect Islamic people.

   Interview with the delegate

5. The applicant was not interviewed by the Department.

   The delegate’s decision

6. On 7 September 2021, a delegate of the Minister refused the applicant’s protection visa application. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk that she will suffer significant harm as defined in s36(2)(aa) of the Act.

   Claims and evidence before the Tribunal

   Review application

7. On 14 September 2021, the applicant applied for a review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision.

   Request for a decision on the papers

8. On 12 March 2024 the Tribunal wrote to the applicant advising that it had considered all the papers relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 3 April 2024. The Tribunal asked the applicant to complete a Response to Hearing Invitation Form.

9. On 27 March 2024 the applicant wrote to the Tribunal and indicated they wanted a decision on the papers. She returned the completed Response to Hearing Invitation Form. In that form she ticked the box indicating she did not wish to participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. That form included the applicant’s name in the signature panel and was dated 27 March 2024. The completed form was sent from the applicant’s email address on record and included a copy of the bio-data page from her passport.

10. Given the Response to Hearing Invitation Form did not contain the applicant’s signature and included only their name in the signature panel, for the avoidance of doubt the applicant was contacted on the phone to confirm their request for a decision on the papers. On 5 April 2024 the applicant confirmed orally, via a Mandarin interpreter, their request for a decision on the papers without attending a hearing before the Tribunal.

11. This matter has therefore been determined on the evidence available to the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Nationality

18. The applicant claims to be a citizen of China and provided a copy of the bio-data page of her Chinese passport to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of China. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of China and China is her receiving country for the purposes of assessing her claims for protection.

    Analysis, reasons and findings

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

20. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

21. The Tribunal formed the preliminary view that there was insufficient material before it to be satisfied that the applicant’s claims to be owed protection were established, and that she faces a real chance or real risk of serious or significant harm on return to China. As the Tribunal was unable to make a favourable decision it invited the applicant to a hearing in accordance with s 425 of the Act. The Tribunal’s invitation to the hearing advised the applicant that it was unable to make a favourable decision on the information before it. Nevertheless, the applicant elected not to attend the hearing and consented to a decision on the papers. The Tribunal did accept any further information from the applicant up until the time of the decision, however the applicant did not provide the Tribunal with anything further. 

22. Based on the evidence before it, the Tribunal has multiple concerns with the applicant’s claims. The evidence presented by the applicant to the department and the Tribunal is not sufficiently detailed to enable the Tribunal to be satisfied that the applicant faces a real chance of persecution in China or that there are substantial grounds for believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

23. There is insufficient evidence before the Tribunal in relation to the applicant’s claim that in 2017 she had a daily habit of commenting on news issues. The applicant has not explained how she commented on news issues, what issues she commented on, what platforms she used to make comments, what led her to comment on issues in 2017, whether she had commented on any news issues before that time, what her specific views were in relation to the news issues, and whether she had a public profile when making comments.

24. In relation to her claim she learnt from the Uygur people she had met and posed about them, the applicant has not explained when she met the Uygur people, how many people she met, how she learnt from their stories, what the stories were, why she felt their lives were hard and why she believed the Chinese government treated them unfairly. She has not explained how she obtained pictures from the Uygur people, what these pictures were of, and what comments she made on the internet in relation to the Uygur people. Nor has she explained how her comments would let more people around her know what was happening to the Uygur people.

25. The applicant has not explained how she was found by the police, how they found her online profile, when her online accounts were blocked, whether she was contacted when her account was blocked, when and where the police came to talk to her, what she said when the police told her if she tried to post something similar again on websites she would be put in gaol, and whether any other action was taken by the police at this time.

26. There is also insufficient information before the Tribunal in relation to the applicant’s claim she found some Uygur people were sent to the Learning School. The applicant has not explained how she found this out, where the Learning School was, how she came to know what the Uygur people were taught at the learning school, and when this occurred. She has not detailed how she registered new accounts in Weixin and Weibo, whether these were in her name, how the accounts were connected to her personal details, and what she planned to post to tell people what happened to her. Nor has she explained in detail the specific grievances she experienced and what support she was seeking from the public and via her internet posts.

27. In relation to the applicant’s claims she was arrested, she has not explained when this occurred, where her home is located, who was at her home at the time of her arrest, how many police attended her home, and whether she was arrested with force. She has not explained whether she was told the charges against her and whether the crime of releasing faulty information to the public was the only charge. Nor has she explained how she was given information about this crime and whether the police told her how they came to investigate her.   

28. There is also insufficient information before the Tribunal as to the applicant’s claim she spent time in the police station. The applicant has not explained when she was at the police station, what happened whilst she was there, where the police station was, whether she was issued with new charges at the police station, what the non-existent crimes are that were put on her, how she admitted to these crimes, what the sentence was, and how she was freed from the police station. She has not explained if she was given any documents by the police.

29. The applicant has also provided insufficient information in relation to the reasons for her departure to Australia. The applicant has not explained why she had no hope in China, why she would be watched by the police and whether this was told to her, and why she could not do business or look for a job. Nor has she explained why she cannot complain in China and whether she tried to make a complaint to anyone. She has not explained why she overstayed her visitor visa in Australia and why she first decided to apply for a visitor visa to escape to Australia.

30. In relation to her claim she may be sent to the Learning School if she returns to China, the applicant has not explained why she fears this, whether it was threatened to her, where the Learning School is and what she expects she would be taught at the Learning School. In relation to her claim she cannot move to another place within China, the applicant has not explained why it is not easy to move, why the government is watching her, how the Chinese government have a very wide network across the whole country and how she knows this, why she would be of continued interest to the government, and why the Chinese government will not protect Islamic people and how this relates to her claims and fears. 

31. In view of the insufficient detail provided by the applicant in her claims, as explained above, the Tribunal is not satisfied of the applicant’s claims. The Tribunal accepts the applicant is Han Chinese and was born in [year] in the [District 1], Liuzhou City, Guangxi, China. Given the lack of specific details about the applicant’s claims, as identified above, the Tribunal is not satisfied the applicant had a habit of commenting on news issues in 2017 or at any other time or that she met Uygur people, learnt their stories, posted pictures of them online, understood they were sent to the Learning School, or commented on what was happening to them online in any way and at any time. Nor does the Tribunal accept she was found by the police, arrested, detained, charged, or had any internet accounts that were stopped by the police at any time. The Tribunal is not satisfied she felt she had no hope in China, was being watched by the police, could not do business or look for a job, or that she could not move within the country due to Chinese government networks or any other reason. Given this, the Tribunal is not satisfied the applicant escaped China to come to Australia. It follows the Tribunal is not satisfied that she is known by anyone in such a way in China that she would be a target or harmed on her return to China.

    Does the applicant meet the refugee criterion?

32. The applicant claims if she returns to China she will be sent to the Learning School, watched by the police, unable to do business, and unable to look for a job. As set out above, in view of the insufficient information and lack of detail contained in the applicant’s claims, the Tribunal does not accept the applicant’s claims that she commented on news articles in 2017 or at any other time, or that she met or came to know about the Uygur people, learnt their stories, posted any pictures of them online, or commented on what was happening to them, including in relation to the Learning School. Nor has the Tribunal accepted the applicant was contacted, found, arrested, detained, or charged by the police at any time or that she had any internet accounts that were stopped by the police or anyone else. The Tribunal does not accept the applicant’s claim therefore that she will suffer harm on return to China in connection to those claimed events. As the Tribunal is not satisfied the applicant was involved in commenting on the Uygur people or has met or had any involvement with them in any way, in China or in Australia, it follows the Tribunal is not satisfied the applicant would post or comment about the Uygur people if she were to return to China or that she would be pursued in relation to any online posts of any kind. The Tribunal is not satisfied she has been persecuted in China in the past, or that there is a real chance that she will be persecuted in the reasonably foreseeable future.

33. The applicant did not claim, and there is nothing in the material to suggest, that she fears persecution for any other reason in China.

34. Having considered the applicant’s claims singularly and on a cumulative basis and taking into account the findings set out above, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

1. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   Does the applicant meet the complementary protection criterion?

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

3. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[1]. For the reasons set out above, the Tribunal finds the applicant does not face a real risk of significant harm for any reason. On the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.

   [1] MIAC v SZQRB [2013] FCAFC 33.

4. The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   Conclusion

5. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

6. Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

7. There is no suggestion that the applicant satisfies s36(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 criteria in s 36(2).

   DECISION

8. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Rachelle Johnston
   Member

   
   

   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.

   …