2204255 (Refugee)
[2025] ARTA 1680
•1 July 2025
2204255 (REFUGEE) [2025] ARTA 1680 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2204255
Tribunal:General Member R Hampson
Date:01 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decisions under review.
Statement made on 01 July 2025 at 1:43pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – opposition to the BJP government – social activist – reservation quotas to educational institutions – torture – attack on home – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 384, 499
Migration Regulations 1994, Schedule 2CASES
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
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 14 March 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 20 September 2018. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
The applicants applied to the Tribunal on 15 March 2022 for a review of this decision.
On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicants contacted the Tribunal on 11 June 2024 requesting a letter for Medicare which was provided to them on 12 June 2024.
The Tribunal sent the applicants a prehearing information form on 6 February 2025. The applicants returned this form to the Tribunal with questions answered. In this form, the applicants were asked if they wished to participate in a hearing when scheduled by video to which they ticked the box ‘no.’ This form also included a section where the applicants could provide further information about their claims for protection, to which they did not provide any further information.
On 16 May 2025, the Tribunal sent the applicants an email inviting them to a hearing at the Brisbane registry on 25 June 2025. The hearing letter advised them to contact the Tribunal as soon as possible if they could not attend the hearing or believed they would experience difficulties in participating in the hearing as arranged. The invitation requested them to complete the form and return it to the Tribunal.
On 20 May 2025, the applicants responded to the hearing invitation via the online portal. In this form, the applicants ticked the response; ‘No, I will not participate in the hearing and request the tribunal to make a decision on the papers without holding a hearing.’
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision without holding a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
Did the parties consent to proceeding without a hearing?
Section 106(3)(a) and (b) of the Art act sets out that the Tribunal may make a decision without holding a hearing in circumstances where only the parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicants request the Tribunal to make its decision without holding a hearing.
Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship.
The applicants have ticked the response; ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed and signed ‘Response to hearing notice’ form dated 20 May 2025. The Tribunal finds the applicants response to be clear and unambiguous[1] indication that they do not wish to participate in a hearing and wish the Tribunal to prod to a decision on the material before it. The tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the parties?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025), when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that[2]:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal.[3]
[2] 2203419 (Refugee) [2025] ART (13 June 2025).
[3] Ibid.
The Tribunal notes the following instances where the applicants have been given the opportunity to present their claims for protection:
·The applicants completed and lodged a protection visa application along with ‘letters of support’ with the department on 20 September 2018 in which they outlined their claims for protection.
·On 9 February 2022, the delegate wrote to the applicants requesting further information about their claims. The applicants did not respond to this request.
·The applicants then made an application for review to the tribunal on 23 March 2022 in which they referred to their claims as specified in their protection visa application to the department. They provided no further information in this application.
·On 6 February 2025, the Tribunal sent the applicants a prehearing information form with questions to respond to and stating if they had any further information about their case to provide this to the Tribunal as soon as possible. The applicants responded to the form on 13 February 2025 and stated they did not wish to participate in a hearing by video by ticking a box ‘no’ to this question. The applicants did not provide any further information at this time.
·The applicants were sent by email on 16 May 2025 a hearing invitation to attend a hearing at the Brisbane registry on 25 June 2025. In this hearing invitation the applicant’s had the opportunity to provide further information about their claims and respond to whether they wished to attend the hearing or have the Tribunal decide the matter without holding a hearing, to which they responded, ‘no, I wish to have the Tribunal make a decision on the papers without holding a hearing’.
To date the applicants have not indicated their wish to provide the Tribunal with any additional material or provide any other written arguments for consideration.
As such, the Tribunal is satisfied the applicants have had an opportunity to present their case and provide all information, evidence, and submissions they consider important and relevant in support of their application.
The Tribunal is therefore satisfied that the issues for determination can be adequately determined in the absence of the parties and that s 106(3) of the ART Act has been met.
BACKGROUND
According to their protection visa application the primary visa applicant, [name] (the primary visa applicant) and his wife, [name] (the secondary visa applicant) claim to be [an age] year old and [an age] year old nationals of India.
The primary visa applicant was born in [Village 1], Gujarat, India. He claims his ethnicity is Indian and his religion is Hinduism. The secondary visa applicant was born in [Village 2], Gujarat, India. She claims her ethnicity is Indian and her religion in Hinduism
This couple state they were married [in] May 1987 and have [number] adult children all of whom reside in Gujarat, India. The primary visa applicant has also listed his parents who are both deceased, his [siblings] who all still reside in Gujarat, India. The secondary visa applicants also listed her parents who are both deceased, and her [siblings] all of whom still reside in Gujarat, India.
The applicants list their employment as self-employed selling [products] from [specified year] to 2018.
Both applicants list their highest education as primary school.
Both applicants arrived together in Australia [in] August 2018 on Visitor visa’s.
The applicants applied for a protection visa on 20 September 2018 and were granted a Bridging visa (BVA).
Evidence before the Department
The applicants provided a personal statement along with their protection visa application and it is summarised below:
(a)The primary visa applicant claims he was a common citizen and a social activist who helps and assists people when needed and stands for truth and justice.
(b)In early 2015 his community started a movement to in the ‘reservation quota’ to give reservation to poor people in government colleges, universities, and the government sector’. The primary visa applicant was a leading voice in the community.
(c)He protested peacefully but innocent people were beaten and harassed by ‘political goons of the BJP.’ (He states he has included a BBC news article in his statement, however the delegate has not been able to locate this document and it does not appear to be attached as indicated by the applicant.)
(d)He then decided to run to campaign against the BJP government and attended meetings, met people there and wrote articles against the BJP government requesting people not to vote for the BJP government in the December 2017 assembly election.
(e)He claims he was threatened by the government to stop his involvement in this movement and offered money to stop his involvement.
(f)The BJP won government and after this, the applicant claims he was harassed and put pressure on as a voice raised against the BJP. He did not accept money offered for his silence.
(g)His house was attacked and his family ‘tortured.’
(h)He went to the police but the police were ordered not to help him.
(i)He could not tolerate the ‘torture’ so he decided to leave his country, India for Australia.
The delegate wrote to the applicants on 9 March 2022 with a list of questions they required more information on to assist with their examination of the applicants claims, as the current application lacked detail and as such raised concerns about the genuineness of their protection claims. The delegate did not receive a response from the applicants to this s 56 request.
The applicants were not offered an interview with the delegate.
Summary of the delegates decision
The delegate, in their decision record, dated 14 March 2022 has stated that on considering the applicants claims individually and cumulatively and with their concerns about the credibility of the claims, they are satisfied the applicants claims are not credible and the delegate rejects the applicants claims in their entirety.
The delegate therefore concluded they were not satisfied the applicants are refugees as defined by s 5H of the Act and as such not persons to whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate then considered if the applicants met the criteria for complementary protection as defined by s 36(2)(aa) of the Act and determined they were not satisfied the applicants were persons in respect of whom Australia had protection obligations as provided for by s 36(2)(aa) of the Act.
Evidence before the Tribunal
No further documents, or submissions relating to the applicants claims for protection have been provided to the Tribunal.
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
The issue in this case is whether the applicants meets the criteria for the grant of a protection visa and are therefore persons to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The primary and secondary review applicants provided copies of their Indian passports to the Department. Given this and the fact the delegate did not indicate any issues with their identity claim or nationality the Tribunal accepts they are Indian nationals and India is their receiving country for the purposes of assessing his protection claim.
Does the applicant satisfy the refugee criterion for protection?
To determine if the applicants satisfy the refugee criterion for protection the Tribunal must consider if there is a real chance of harm if the applicants were returned to their home area of the receiving country in the reasonably foreseeable future.
In considering this point the Tribunal has had regard for s 5AAA which asserts the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicants claims, or to establish or assist in establishing the claims. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant[4].
[4] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered firstly the claims for protection the applicants made in their protection visa application and attached statement. As the Tribunal is relying solely on the information the applicants have provided in their protection visa application it relies on unsubstantiated claims to form a decision. The primary review applicant claims he[5] was, in 2015, a ‘leading voice in his community’ regarding the reservation quota for poor people to enter educational institutions. The Tribunal having no evidence of this does not accept this claim.
[5] The claims appear to be written only in the voice of the [primary review applicant] and will be referred to as ‘he.’
He claimed he protested peacefully but others were arrested and he states he has provided a news article regarding this protest which was not provided to the delegate and therefore could not be considered. The Tribunal therefore based on the lack of evidence of this point does not accept the claim.
The applicant claims that in 2017 he wrote articles, attended meetings, and ran against the BJP government. He has not provided any evidence of these articles or his running for election to the delegate or the Tribunal and as such this claim is not accepted.
He claimed he was offered money for his silence against the BJP government and threatened by them to stop his involvement. He has provided no further information regarding these threats such as when, where, by whom and why this would occur. As such the Tribunal does not accept this claim.
He claims his family were tortured because of his involvement in sentiments against the BJP government. He states that because of this torture he has fled India for Australia. He has provided no further information about such a significant claim to the delegate or the Tribunal. The Tribunal does not accept this claim.
He claims he went to the police about this torture but the police were instructed not to help him. He has provided no further information about this such as when he went to the police, which police station he went to, what he told them. The Tribunal does not accept this claim.
The Tribunal finds the applicants claims lack substantiation and detail and, as a result finds them not to be credible in their entirety and does not accept any and all of these claims.
For the reasons given above, the Tribunal is not satisfied that either the primary or secondary review applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicants meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to India, there is a real risk that they will suffer significant harm.
As considered above in paragraphs 39 to 48 the Tribunal is not satisfied there is a real chance of the applicants being harmed by any person or group or by the Indian authorities on the basis of his political opinions real or imputed, his past experiences and any low level affiliation with protests against the BJP government or for any other reason he has claimed, either individually and/or cumulatively, should they return to India in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion and as such the Tribunal is not satisfied there are substantial grounds for believing the applicants as a necessary and foreseeable consequence of them being removed from Australia to India there is a real risk that they will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
There is no suggestion that either of the applicants 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 applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
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.
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