2403681 (Refugee)

[2024] AATA 3169

2403681 (Refugee) [2024] AATA 3169 (7 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2403681

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Joshua Le Vay

DATE:7 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2024 at 10:50am

CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions, employment opportunities and supporting parents – no past harm or fear of future harm – mother and siblings employed – country information – shortages of skilled and semi-skilled workers – lower pay not serious or significant harm – Australian partner – separation not significant harm – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZBQJ v MIMIA [2005] FCA 143
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
SZRSN v MIAC [2013] FMCA 78; [2013] FCA 751
WZARI v MIMAC [2013] FCA 788

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 23 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who is a citizen of Fiji, applied for the visa on 28 January 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. 

3. The applicant appeared before the Tribunal on 30 April 2024 to give evidence and present arguments.

   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 (Department), 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

10. In his protection visa application form, the applicant provides the following information:

    ·     He was born in [Year] in [Town 1], Fiji.

    ·     He is Catholic.

    ·     He speaks, reads, and writes English.

    ·     He has never married.

    ·     He has no family members of the same family unit.

    ·     In Fiji he lived in [Town 1].

    ·     He has never been employed.

    ·     He has never studied.

    ·     He [did an activity] at a high level and was paid by [a Fijian activity organisation].

    ·     He travelled to Australia from Fiji [in] February 2023, entering on his Fijian passport as a visitor, and holds a [specified sub class] visa.

    ·     He gave a residential address in [Town 2], New South Wales.

    Evidence before the Department

    Protection visa application

11. The applicant’s written claims for protection are contained in his protection visa application form and are summarised as follows:

    ·     He left Fiji because he is unable to support his ill and aging parents.

    ·     He did not experience harm in Fiji and does not think he will be harmed or mistreated if he returns to Fiji.

    ·     He is unable to find stable employment in Fiji and so would not be able to support his parents with their medical and living expenses.

12. He received assistance in completing the application form.

13. He provided a copy of the biodata page of his Fijian passport. The passport was issued [in] 2023 and confirms the applicant’s name, date of birth, and place of birth.

    The delegate’s decision

14. The applicant was not invited to attend an interview with the delegate. On 23 February 2024, the delegate made his decision. The delegate found that the applicant’s claims of economic hardship do not relate to any of the reasons specified in s5J(1)(a) of the Act, and there is no other information to suggest that the applicant will be subject to harm on his return to Fiji for one or more of those reasons; and further that there is no information to indicate that he would suffer significant harm if he returns to Fiji.

    Evidence before the Tribunal

    Application for review

15. On 29 February 2024, the applicant lodged an application for review of the delegate’s decision with the Tribunal.

16. The applicant was represented in his review application. On 3 April 2024, the representative wrote to the Tribunal indicating that the applicant wished to represent himself. The Tribunal sought confirmation and formal notification that the applicant wished to represent himself by way of completion of a Change of Contact Details form.

17. On 26 April 2024, the applicant provided a response to the hearing invitation, indicating that his representative would not attend the hearing. The applicant also requested that the Tribunal take oral evidence from [Ms A], who was described as the applicant's partner.

18. The applicant provided no further material or information to support his case prior to the hearing.

19. The hearing was conduct by video conference, with the applicant’s agreement, since the Tribunal understood that the applicant was residing in regional New South Wales. The applicant was unable to establish a video connection with the Tribunal. He was however able to make an audio connection and the hearing proceeded on this basis without difficulty.

20. The applicant’s representative did not attend the hearing. The applicant confirmed at the hearing that he was no longer represented.

21. The Tribunal received oral evidence from [Ms A].

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The applicant confirmed with the Tribunal that he was assisted by his then representative in completing the protection visa application. He said that the information in his application is correct except for his residential address. He does not live in New South Wales. He lives in Victoria at an address where he has been residing since January 2024. At the time of completing the protection visa application the applicant was proposing to move to the address in New South Wales stated in the protection, but the move never took place. The address given in the application is that of his then representative.

23. He also told the Tribunal that he in a relationship with [Ms A] – an Australian national – with whom he is living. They have been in a relationship for six months. They are not married.

24. The applicant said that he has been working in Australia casually as [an occupation 1] worker for three months preceding the hearing. He has done no other work since arriving in Australia in September 2023.

25. He has completed a Certificate IV in [Subject], which was conducted online.

26. The Tribunal asked the applicant about his family. He said that his parents live in [Town] in rental accommodation. His father is retired – he was in [work sector]. His mother works in a shop. The applicant sends them about $100 a week although the frequency/amount varies. His parents have no other source of income. He said that his parents are aging but are otherwise well.

27. He has one brother and one sister. His sister lives with his parents and works for [Employer]. His brother lives separately in [Town] and works as [an occupation 2] at a [workplace]. Both his siblings are single.

28. Contrary to the information in the protection visa application form, the applicant said that he completed high school in 2022. He then [did an activity semi-professionally with a group], which he named, [in Fiji and New South Wales]. He travelled to Australia several times in 2023 in order to [do that activity]. This is confirmed by information available to the Tribunal that indicates that the applicant travelled to Australia for short periods in April, May, June, and July 2023. The information also confirms that the applicant was issued a [specified] visa in March 2023. The applicant said that his protection visa application also wrongly gives his last date of arrival in Australia as [February] 2024. Information confirms that the applicant last entered [in] September 2023.

29. The Tribunal asked the applicant why he travelled to Australia in September 2023. He said that he wished to work and also to complete the Certificate IV in [Subject]. The Tribunal asked him if he could not have completed the course in Fiji if it was online. The applicant said that he could have done but that he wanted to seek work in Australia on its completion so as to support his parents, since his mother’s income is insufficient.

30. He said that if he were to return to Fiji, he would have fewer opportunities than in Australia and would not be able to support his parents. The Tribunal noted that his mother and siblings are working and asked the applicant why he could not also find work. He replied that workers are paid less in Fiji than in Australia.

31. The Tribunal explained Australia’s protection obligations to the applicant and indicated that it may find that any lower pay in Fiji as compared to Australia would not amount to serious or significant harm. He made no comment.

32. The Tribunal asked the applicant if there were any other reasons why he believed he could not return to Fiji. He replied that he wants to start a family with his partner when the timing is right. The Tribunal indicated that separation from his partner may not engage Australia’s protection obligations. He made no comment. The Tribunal also put country information to the applicant regarding economic conditions in Fiji, which include that there is a shortage of skilled and semi-skilled workers. He repeated that he would be paid less than in Australia and would not earn enough to support his family. The Tribunal indicated that it needs to consider the effect on the applicant – not his family in Fiji – of his return there when assessing Australia’s protection obligations.

33. The Tribunal noted that the applicant had stated in his application that he had not been harmed in Fiji and did not fear harm on return to Fiji. He replied that there are murderers and drug wars. The Tribunal asked him if he had ever been personally affected by this before. He replied than in 2020 he tried to move along some drunk men, who were outside his family home and that they responded by hitting him. They also stole his phone and watch. He did not seek medical treatment because he could not afford it and did not report the matter to the police because he was afraid this might provoke the men. He had no other difficulties. The Tribunal remarked that this is inconsistent with the information in the protection visa application and that even if accepted the Tribunal might assess that it was an isolated incident. The applicant confirmed that he does not fear harm in Fiji.

34. The Tribunal then spoke with [Ms A] at the applicant’s request. She confirmed that she is living at the same address as the applicant and that she is Australian. She stated that she wanted to confirm the applicant’s address and that he is no longer represented. She asked for advice regarding a partner visa application by the applicant. The Tribunal indicated that it was unable to advise on this.

35. The Tribunal accepts the applicant’s claims to the extent that they were made. He presented as a credible witness. He sought to correct information in his protection visa application. He has not exaggerated his claims. He does not fear harm on return to Fiji. The Tribunal accepts that he gave an honest account at the hearing.

36. The Tribunal accepts that the applicant travelled to Australia in September 2023 in order to seek higher paid work than is available to him in Fiji so that he may support his parents; and that he was beaten once in 2020 by some drunk men outside his home but has no further fear in relation to this incident.

    Does the applicant meet the refugee criterion?

37. The meaning of well-founded fear of persecution under the Migration Act (s 5J(1)) requires that a person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and that 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 above reasons. If a person fears persecution for one or more of these reasons, then the persecution must involve serious harm to the person (s 5(J)(4)(b)). Section 5(J)(5) provides instances of serious harm.

38. The applicant states that he does not fear harm in Fiji. Consequently, the Tribunal finds that the applicant does not have a well-founded fear of persecution and so is not a refugee as defined by s 5H(1) of the Act. Accordingly, the Tribunal finds that the applicant is not owed protection obligations under s 36(2)(a) of the Act.

39. There is in any case no information before the Tribunal to indicate that there is a real chance that the applicant would be subject to serious harm for any reason on return to Fiji. The Tribunal has accepted that the applicant was beaten by some drunk men when he tried to move them away, some three years before he last travelled to Australia, but as discussed with the applicant the Tribunal assesses that this was an isolated incident. The applicant also stated that there are murders and drug wars in Fiji but has not claimed that he has been personally or will be personally affected by this, and there is no information to indicate that there is a real chance that he would be.

40. The applicant has expressed a desire to work in Australia so as to support his parents in Fiji and states that he would have fewer opportunities in Fiji. He has not claimed that he would not be able to support himself on return to Fiji. In any case the Tribunal finds that any economic disadvantage to the applicant or reduced job opportunities on return to Fiji would not amount to serious harm. The Tribunal specifically finds that there is not a real chance that the applicant will suffer economic hardship or will be denied the capacity to earn a livelihood, that threatens his capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[1] The Tribunal also notes that the applicant has been working in Australia and has obtained a qualification in youth work. As discussed with him, country information – from the Reserve Bank of Fiji – indicates that in February 2024 there was a shortage of both skilled and semi-skilled workers. In January 2024 the total number of jobs advertised rose by 29.7 percent to 1,568 vacancies with improved recruitment intentions noted in community, social and personal services; and the construction, transport, storage, and communication sectors.[2] Other information indicates that Fiji is one of the most developed and connected economies in the Pacific Islands region. Fiji is defined by the World Bank as an upper-middle income country.[3] The Tribunal assesses that the applicant would be able to secure employment in Fiji. Both his siblings and his mother are working in Fiji. His family live in [Town], which is [size of town].

    [1] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

    [2] Reserve Bank of Fiji, Economic Review, month ended February 2024,

    [3] Department of Foreign Affairs and Trade (DFAT), DFAT Country Information Report, 20 May 2022, para. 2.7

41. Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the reasonably  foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

    Does the applicant meet the complementary protection criterion?

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

43. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion, for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm.

44. In relation to any lower earnings or reduced job opportunities in Fiji compared to Australia, the Tribunal finds specifically that this does not amount to any of the types of significant harm defined in s 36(2A).

45. The applicant has stated that he wishes to remain in Australia with his partner. However, separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[4]

    [4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).

1. For the above reasons, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

   Conclusion

2. 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).

3. 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).

4. 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

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

   Joshua Le Vay
   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.

   …