2316989 (Refugee)

[2023] AATA 4841

2316989 (Refugee) [2023] AATA 4841 (12 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316989

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Rodger Shanahan

DATE:12 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 12 December 2023 at 2:10pm

CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – lack of jobs – worse pay than Australia – credibility issues – new claims of tribal conflict – brother’s death due to other tribe – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499
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 dependants.

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 4 October 2023 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 Papua New Guinea, applied for the visa on 1 September 2023.

3. The applicant appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [the] applicant's Employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin (PNG) and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CLAIMS AND EVIDENCE

   Protection Visa Application

10. The applicant provided the following claims as part of his statement:

    a.Why you left the country: My country is a very poor country. There are very few jobs available and the pay is very low.it is very difficult to support my self and my family. That is why i come to Australia. There are many jobs that i can do here. The pay that i will get is very high compared to the pay in my country. I can work in Australia and i can send money back to my family in Papua New Guinea. The money will help them a lot to pay for the rental and food.

    b.The type of harm you experienced: I will not be able to work and get the good pay if I stay in Papua New Guinea.it will harm me of not getting the sufficient funds for everyday living expenses.

    c.Why didn’t you try to move to another part of the country: Did not try to move another location in my country because the situation is the same as anywhere else in the country.

    d.What will happen to you if you return to PNG: i will face dire circumstances that will harm my livelihood in my country.

    AAT Hearing

11. He was asked if he knew everything in his protection visa application and knew it to be true and correct, and he said that everything in the application was true. Asked if he wrote it himself, he said that he filled out the form himself. Asked if anyone assisted him, he said that nobody helped him and he filled it out himself. He again said that he was the only one who wrote the application.

12. He claimed that if he returned to PNG the tribes would kill him and cut him into pieces. Asked which tribe would do this and why they would target him, he claimed that the neighbouring tribe would do this and that they had killed his brother and would kill him. He lived in Enga province in [District] – he lived close to [Town 1] town and took him two hours to walk there. His brother was killed [in] April 2026. Asked to confirm what year, whether it was this year or last year, he said it was last year. The other tribe killed him.

13. Asked where he went to school, he said he went to secondary school in Enga Province. It was put to him that his application said that he did primary school in Port Moresby. He claimed again that he came to Port Moresby for three years and then returned to Enga. Asked why he couldn’t return to Port Moresby, he claimed that the place he was in wasn’t good and his brother was killed so he went back to Port Moresby.

14. He was asked when he was in Port Moresby and when he left, given he claimed his brother was allegedly killed last year. He said that he went back from Port Moresby in July last year. Asked if he lived in Port Moresby until July last year, he said this was correct. He said that he wasn’t doing anything in Port Moresby. He had lived there for two years and six months. Asked if he went to primary school there, he said that he did.

15. Asked why he couldn’t live in Port Moresby if there were problems in Enga. He stated that they killed his brother and he left Enga and ran to Port Moresby. Asked if this was after they killed his brother, he said yes he went to Port Moresby after they killed his brother. It was put to him that he had made no mention of his brother being killed or the tribal fighting in his protection visa application and the claim he made today was completely different to the claim he had made previously in his application.

16. He claimed that he had written this on the paper he submitted and he was told that it wasn’t. He again said that he had sent the Tribunal all the information about this claim. He was told about s 424AA and it was put to him that his protection visa application made no mention of tribal warfare or him being harmed because of it. It just said that his country was poor and he wanted to work and get paid well here. There was also another case from a PNG national on the same work visa as the applicant and his claim was word-for-word, paragraph-by-paragraph exactly the same as his claim. The Tribunal was concerned that he had not been truthful about filling out the form by himself and he was also not truthful about him living in Enga, his brother being killed or him being at risk of being killed in tribal warfare. His credibility was under question by the Tribunal.

17. He claimed that he came through the seasonal workers scheme and he did the application himself. Asked why there was no mention of tribal violence or his brother being killed, he repeated that his brother was killed. It was also put to him that he had provided a statutory declaration from his mother in support of his claim but there was also no mention of his dead brother. Country information indicated that fraudulent documents were easily obtained in PNG. He claimed that his mother’s letter just said he should live in Australia and it wasn’t safe for him. He was advised that the Tribunal was unlikely to be able to give it any weight.

18. It was also put to him that country information indicated the provincial capital [Town 1] was safe so he could relocate there, and he had also lived for a time in Port Moresby and he could also move there if required. He said he couldn’t return, they had killed his brother and they would kill him. The Tribunal said it was aware that there had been tribal fighting in Enga Province but the Tribunal was concerned that his brother was not dead and he was of no interest to the parties and he could relocate if he wished.

19. The Tribunal was also concerned that he had not filled out his protection visa application. He said that he wrote it and his mother helped him with some papers and sent these to him through email. His witness was then called. The witness said she was from a bordering province in PNG and she was a contractor and she found some of the workers who said there was a conflict in their province and they wanted to apply for protection – she employed them. She said the Enga governor sent workers here and they had all applied for protection and were now coming to the AAT.

20. Asked what she knew first-hand of the applicant’s claim, she said she had seen videos of what happened in Enga Province. She had no first-hand knowledge of his application as she was in a neighbouring province. She didn’t know about his personal circumstances but could talk about the fighting. She then said she knew the applicant’s circumstances. Asked what she knew, she said he couldn’t go back because he was in fear and his brother was killed. She knew this because she heard when his mother rang the applicant. They were together in the same house as the applicant and after the conversation he told them what happened. Asked what his brother’s name was, she said she didn’t know it.

21. Asked if she knew where the applicant was living before he came to Australia, she said she didn’t know. Asked how she knew he lived in Enga Province before he came to Australia, she said that she didn’t know. The applicant said that he wanted to stay in Australia and not return to PNG.   

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant arrived in Australia [in] December 2022 and applied for protection on 4 September 2023. The applicant is [an age] year-old man who is a Papua New Guinean citizen. I have seen a copy of his passport and accept that it is genuine and he is a citizen of Papua New Guinea (PNG). He claimed that if he returned to PNG he would be killed because of tribal fighting in Enga Province, where he was from.

23. In considering an applicant’s account, undue weight should not be placed on some degree of confusion or omission to conclude that a person is not telling the truth. Nor can significant inconsistencies or embellishments be lightly dismissed. The Tribunal is not expected to accept uncritically any and all claims made by an applicant. 

24. Overall I found the applicant’s evidence regarding his claims to lack credibility. For reasons set out below I did not find the applicant to be an entirely credible, reliable or truthful witness, and find that he fabricated his claims in order to be granted a protection visa.

    Credibility Issues

25. The applicant was asked whether he knew everything in his protection visa application and that it was true and he stated that it was. He also said that he had filled it out by himself without assistance from anyone. He repeated this claim when asked again. The claim however was word-for-word the same as that of another PNG national who has also made a claim for protection and whose case was recently heard by the member.

26. Nor does the written protection visa application make any mention of the applicant’s allegedly deceased brother. The applicant was also inconsistent in his account of the dates and his movements surrounding to the alleged death of his brother. Variously he claimed that:

    a.His brother was killed [in] April 2026, then that he was killed last year;

    b.He had lived in Port Moresby for two and a half years and lived there until July last year (2022). This would mean that he was in Port Moresby from 2020; and

    c.He also said that he left Enga and went to Port Moresby after they killed his brother (which meant that he was in Enga in 2022).

27. Given the similarity of his claim with that of another PNG national who also claimed to have filled out the application independently, as well as the inconsistency in the applicant’s claim that his brother was killed in tribal fighting (absent in his written application but presented at hearing) as well as significant inconsistencies regarding his movements to or from Port Moresby around the time of his brother’s ’s death, the Tribunal forms an adverse opinion of his credibility as a witness.

    Tribal Fighting and Targeting of Applicant

28. I accept that there has been tribal fighting in Enga province, as evidenced by media reports and the evidence the applicant provided. I do not accept that the applicant’s brother has been killed as a result of fighting in Enga. I also do not accept that there is a real chance that the applicant would be targeted because of the fighting in the reasonably foreseeable future.

29. Although the applicant claimed that he fled to Port Moresby after his brother was killed, this is inconsistent with his protection visa application in which he claimed that he had lived in Port Moresby from 1980 until December 2022. He also stated in his protection visa application that he was employed in Port Moresby from 2000 until 2022. This is inconsistent with his claim that he lived in Enga province, close to the provincial capital of [Town 1] and that he attended secondary school in Enga.

30. Given the conflicting information I am satisfied that the applicant is likely to return to live in either Port Moresby or [Town 1] on return to PNG. There is no tribal fighting in Port Moresby and country information indicates that the provincial capital [Town 1] is safe, and that people displaced by the tribal fighting are accommodated there because that was what Melanesians did.[1]

    [1] Tribal fighting in PNG's highlands has escalated into guerilla warfare, leaving desperate villagers with nowhere to go - ABC News, accessed 30 November 2023.

31. Regarding the applicant’s claim for protection, I note that despite claiming that he wrote the application himself, he never mentioned the issue of tribal fighting in his original claim. He did not provide an answer when asked why this was the case, simply asserting that he had written it (he had not) and saying that he would be killed if he returned to PNG. The written application also made no mention of the fact that his brother was killed which, given he said that this occurred in April last year (2022) is a significant oversight to say the least, and does nothing to add to his credibility.

32. I have taken into account a statutory declaration (and a letter) that he said were written by his mother in which she says that there is tribal fighting and that she has had to move a ‘long-distant village’ to avoid armed men who were looking for them. While I accept that it has been provided by his mother I lend it no weight.

33. The mother’s letter is very generic, claiming that there has been tribal fighting for some time (without naming the tribes) and that their village has been deserted and they live in a long-distant village (neither village is named). It also makes no mention of his brother’s alleged death, which further reinforces the Tribunal’s view that this claim has been fabricated.

34. The Tribunal is also concerned as to why the applicant’s mother has fled to a ‘long-distanced village’ or why the applicant couldn’t find safety in [Town 1], given the applicant had claimed that he lived close to [Town 1] and I also note that the mother’s statutory declaration was made at [Town 1] which means that she was there as recently as 20 October 2023 and raises concerns in the Tribunal’s mind as to the truthfulness of the applicant’s mother’s current residential circumstances – if she signed the statutory declaration in [Town 1] (which is considered safe) it raises questions as to why she would have then returned to an unsafe ‘long-distance village’.

35. Given the ability for the applicant to live safely in either [Town 1] or Port Moresby, the two locations to which he is likely to return to live in PNG, I am satisfied that there is not a real chance that he will be cut into pieces or otherwise harmed as a result of tribal fighting in the reasonably foreseeable future. 

    Other Issues

36. I have taken into account the evidence of a witness however lend it no weight. She had no direct knowledge of his circumstances and was from a neighbouring province. She did not know where the applicant lived prior to coming to Australia (including his extended period of living in Port Moresby), nor the name of his dead brother. She claimed that she knew about his brother’s death as a result of a call from the applicant’s mother and that the applicant told them what had happened. The witness then, is simply recounting what the applicant told her, and I have already found that the applicant has fabricated his brother’s death.

37. I have also taken into account explicit photos and video provided by the applicant however lend them no weight in determining the truthfulness of his claim. The material appears to be from social media and depicts the aftermath of fighting and dead and mutilated villagers. Although there is no date apparent so they could have been from fighting elsewhere or at a different time,  I have already accepted the fact that there is tribal fighting in Enga Province.

38. What I have not accepted is that the applicant or his family have been targeted or that the applicant will be targeted if he were to return to PNG. The images provided only prove that there has been fighting, not that the applicant or his family have or would be involved in, or targeted as part of the fighting.

39. Although the applicant did not press the written claim made in his protection visa application concerning his country’s poverty and the applicant’s need to work outside PNG to get good money, I will address it for completeness’ sake. I do not accept that the applicant would find it difficult to support himself in Papua New Guinea because of the low pay and that this would cause serious harm to him. The Tribunal accepts that Australian pay rates are superior to those in PNG, however the applicant indicated in his protection visa application that he was employed [in] PNG for more than 20 years until the day before he came to Australia.

1. The Tribunal is satisfied that the applicant would be able to obtain employment commensurate with his skills and qualifications and that the pay rates are an issue faced by the population generally and not one faced by the applicant personally. Hence I do not accept that this is discriminatory or would threaten his ability to subsist and therefore there is not a real risk that he would suffer serious harm on return to PNG because of low pay.  

2. As the applicant hasn’t raised any other claims to fear persecution and, having regard to all the evidence and their claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any s 5(J)(1)(a) reason either now or in the reasonably foreseeable future.

   Complementary Protection

3. Because I do not accept that the applicant’s brother was ever killed in the fighting in PNG, or that the applicant has been or will be targeted, I am not satisfied that there are any substantial grounds for believing that there is a real risk that the applicants will suffer significant harm.

4. As a consequence, I also do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to PNG, that there is a real risk that the applicants will suffer significant harm on the basis of these claims as set out in the complementary protection criterion set out in s. 36(2)(aa).

   CONCLUDING PARAGRAPHS

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 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).

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

   DECISION

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

   Rodger Shanahan
   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.

   …