2316583 (Refugee)

[2024] AATA 1258

2316583 (Refugee) [2024] AATA 1258 (22 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2316583

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:  Damian Creedon

DATE:  22 January 2024

PLACE OF DECISION:  Perth

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

Statement made on 22 January 2024 at 9:32am

CATCHWORDS

REFUGEE – Protection Visa – Vanuatu – applicant failed to attend hearing – ongoing natural disasters in Vanuatu – fear of persecution is not well-founded as required by the Act – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 426, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 12 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

Background

1. The applicant, a [age-year-old] citizen of Vanuatu, arrived onshore most recently on [date] September 2021 holding a Subclass 403 Temporary Work (International Relations) visa.

2. The applicant applied for a protection visa on 5 September 2023 and was granted a Bridging visa which (effectively) remained in force until 27 October 2023 when the applicant was granted a Subclass 408 Temporary Activity visa. That visa remains in force.

Protection visa application

1. The applicant’s claims for protection may be summarised as follows:

   ·     The applicant is under threat posed by natural disasters in Vanuatu which has been severely affected by a series of cyclones, earthquakes and volcanic eruptions. The natural disasters in Vanuatu have led to widespread destruction, displacement and loss of life and the events have made it an increasingly dangerous place to live.

   ·     The natural disasters in Vanuatu have had a profound effect on the applicant’s safety and well-being and the applicant fears for their life in the face of ongoing natural disasters in Vanuatu.

   ·     The applicant believes Vanuatu has inadequate infrastructure and limited resources making it difficult for the Government to effectively respond to these disasters, leaving citizens vulnerable and without sufficient protection.

   ·     The applicant did not try to move to another part of Vanuatu as they were looking after their parents and it was inconvenient to move.

   ·     The applicant does not think the authorities in Vanuatu will protect them as the Government does not have the capacity to ensure the applicant’s safety and well-being in the face of the natural disasters.

2. The delegate refused to grant the visa on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to him receiving country, there was a real risk he would suffer significant harm.

3. The applicant applied for a review of the delegate’s decision.

Application for review

1. The applicant was not represented in relation to the review.

Procedural history

Invitation to attend a hearing

1. On 9 November 2023 the Tribunal wrote to the applicant advising him that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 18 January 2024 at 9:00am (WA time). The invitation requested the applicant to “read and complete the enclosed “Response to hearing invitation” form and return it to the [Tribunal] within 7 days of receipt of this letter”. No “Response to hearing invitation” form or any other material or contact was received from the applicant in the requested time, or at all.

2. The applicant did not attend the hearing on 16 January 2024 or contact the Tribunal to explain his failure to attend. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.441A(5), and that SMS reminders were sent about the hearing on two separate occasions.

3. On the morning of 16 January 2024 an officer of the Tribunal attempted to telephone the applicant on five separate occasions on the mobile telephone number that he provided to the Tribunal during the course of his application, however there was no answer to the calls. The officer’s file note provides as follows, materially:

   Contacted the applicant at 8:50am, 8:55am, 9am, 9:10am, 9:15am - no response.

1. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Evidence

2. The Tribunal has before it a range of material, including, relevantly:

   a.A copy of the applicant’s Vanuatu Passport;

   b.The applicant’s protection visa application forms;

   c.The delegate’s protection visa decision record dated 12 October 2023 (delegate’s decision record); and

   d.The review application form lodged with the Tribunal on 15 October 2023 which included a copy of the delegate’s decision record.

3. The Tribunal has also had regard to the Department of Foreign Affairs and Trade (DFAT)

   Vanuatu country brief.1

4. The Tribunal also notes the current Australian Government Travel Advice on Vanuatu,2 which recommends that visitors “Exercise normal safety precautions”, and advises the following in respect of safety (hyperlinks removed):

   ·The cyclone season is from November to April, but cyclones can happen at any time. Cyclones can disrupt services and cause property damage, injuries, and loss of life. In the

1 DFAT, Vanuatu country brief, < See: < current as at 17 January 2024.

event of a cyclone, follow the National Disaster Management Office and Vanuatu Meteorological and Geo-Hazards Department advice.

·Crime in Vanuatu is low. Crime tends to increase in the lead-up to holidays such as Independence Day (30 July) and Christmas. The risk is also higher at night or in isolated locations. Don't walk alone after dark.

·Earthquakes occur regularly. Tsunamis happen but aren't regular. If you hear a tsunami warning siren (Port Vila or Santo) or experience a long or strong tremor, move to higher ground and follow the instructions of local authorities.

·Vanuatu has several active volcanoes, including under-sea volcanoes. Before traveling to volcanic areas, visit the Vanuatu Meteorological and Geo-Hazards Department website for the latest volcanic activity advice.

1. In respect of recent natural disasters, the Travel Advice notes:

   Tropical Cyclones Judy, Kevin and Lola

Vanuatu continues to recover from the impacts of Cyclones Judy, Kevin and Lola, which have caused widespread damage. There still may be disruptions to infrastructure, services and telecommunications in some locations.

CONSIDERATION OF CLAIMS AND EVIDENCE

Criteria of a protection visa

1. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 he 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.

2. 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.

3. 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).

4. 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.

5. If a person is found not to meet the refugee criterion in s.36(2)(a), he or he may nevertheless meet the criteria for the grant of the visa if he or he 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 he 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

1. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

Assessment of Claims and evidence, and findings:

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

2. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

   …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

1. The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

   The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

1. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

2. For the following reasons, the Tribunal has concluded that the decision under review should

be affirmed.

Analysis of claims

1. The Tribunal notes the applicant’s claims for protection as set out in his protection visa application forms. In his review application form the applicant provided the following additional information to the Tribunal:

   I am writing to request a review of my recent visa application denial based on the threat posed by natural disasters in Vanuatu. The reason for this request is the dire situation that I face, as well as the genuine concerns for my safety and well-being due to the ongoing and severe natural disasters that have plagued the region.

Vanuatu has, unfortunately, become a hotspot for numerous natural disasters in recent times, including cyclones, earthquakes, and volcanic eruptions. These catastrophic events have resulted in widespread destruction, displacement of residents, and even tragic loss of life. The cumulative effect of these disasters has rendered Vanuatu an increasingly perilous place to reside.

The profound impact on my safety and overall well-being cannot be overstated. The fear for my life in the face of the continual natural disasters in Vanuatu is a daily concern. The country's infrastructure and resources are, regrettably, inadequate to effectively respond to these recurring disasters. This lack of resources leaves citizens vulnerable and without the necessary protection, further exacerbating the threats posed by these natural calamities.

I understand that one may question why I did not attempt to relocate to a safer part of Vanuatu. However, I was the primary caregiver for my aging parents, which made moving to another part of the country both inconvenient and logistically challenging. My responsibilities towards them compelled me to stay in my current location.

Additionally, I do not have confidence that the local authorities in Vanuatu can adequately protect me in the event of a natural disaster. The government's limited capacity to ensure the safety and well-being of its citizens during these catastrophes has only deepened my apprehensions.

I kindly request that you reconsider my visa application in light of these compelling circumstances. My primary goal is to ensure my safety and security, and I believe that the current situation in Vanuatu is untenable for me to continue residing there.

I am prepared to provide any necessary documentation or information to support my case and demonstrate the sincerity of my concerns. I would greatly appreciate the opportunity to discuss this matter further and hope for a favorable resolution

1. Accompanying the applicant’s review application form were two picture files comprising:

   a.A screenshot of a news article dated 4 March 2023 bearing the title “Tropical Cyclone Kevin brings destructive winds and heavy rain to Vanuatu’s capital Port Vila”. The screenshot does not include the text of the article beyond the title and main picture.

   b.A screenshot of a report by the United Nations Economic and Social Commission for Asia and the Pacific, reporting upon tropical cyclones Judy and Kevin.

2. The delegate’s decision record put the applicant on notice that the Department did not accept his claims for protection. The applicant did not avail himself of the opportunity of a Tribunal hearing. Consequently, the Tribunal was unable to explore the applicant’s claims with him.

Refugee criterion

1. The Tribunal accepts that the applicant may subjectively fear the risk of natural disasters in Vanuatu, however the applicant made no claim that this circumstance results from one or more than one of the five reasons enumerated in s.5J(1)(a) namely race, religion, nationality, political opinion, or membership of a particular social group.

2. Without a link between one of the characteristics of an individual enumerated in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established. Put differently, to fall within the ambit of s.5J(1)(a) of the Act, the harm feared must be for one or more than one of the five reasons, which are race, religion, nationality, membership of a particular social group or political opinion. None of these reasons apply to the applicant’s claim.

3. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and in his submission to the Tribunal, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Vanuatu now or in the reasonably foreseeable future.

4. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Vanuatu. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

   Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm

5. The Tribunal has considered the applicant’s claims under complementary protection.

6. The Tribunal is not satisfied that the applicant’s fear of natural disasters in Vanuatu amounts to a real risk that he will suffer significant harm for any of the reasons he claims if he returns to Vanuatu now or in the reasonably foreseeable future.

7. The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Vanuatu. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

Conclusion: Refugee Criterion

1. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by the Act and therefore he is not a refugee.

Conclusion: Complementary Protection

1. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu that there is a real risk that he will suffer significant harm.

Overall conclusion:

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(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 s.36(2)(aa).

3. There is no suggestion that the applicant satisfies the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

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

Damian Creedon 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.

…