1709774 (Refugee)

[2020] AATA 5494

1709774 (Refugee) [2020] AATA 5494 (18 November 2020)

­­

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709774

COUNTRY OF REFERENCE:                   Lebanon

MEMBER:Mara Moustafine

DATE:18 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 November 2020 at 5:01pm

CATCHWORDS
REFUGEE – protection visa – Lebanon – fear of harm from family of former girlfriend – threats but no harm – credibility – vague and inconsistent evidence – passage of time – delay in applying for protection until after further student visa refused and refusal affirmed – decision under review affirmed

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

CASES
MIEA v Guo (1997) 191 CLR 559
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.

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 Immigration and Border Protection on 12 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Lebanon and is [Age] years old.  He first arrived in Australia [in] November 2012 as a holder of a [Student] visa valid until 15 March 2015. His application for a further Student visa was refused on 19 June 2015, a decision affirmed by the Tribunal on 20 April 2016. The applicant first lodged a Protection visa application on 16 May 2016, which was invalidated on 8 July 2016. He lodged this Protection visa application on 8 December 2016.

   Evidence before the Department

3. According to his Protection visa application form, the applicant was born in [Year] in Tripoli, North Lebanon and he was living there before coming to Australia in 2012. He is of Arab ethnicity and Sunni Muslim religion. He reads, writes and speaks Arabic and English. In Lebanon he graduated with a Bachelor of [Subject] in June 2010. He identified himself as ‘unemployed’ and indicated that from birth until the present time he has been supported by his mother, who lives in Tripoli. His father is deceased. He was divorced in Sydney [in] May 2015. He left Lebanon legally on 7 November 2012 and entered Australia on a Student visa. He was refused another Student visa because the case officer was not satisfied that he was a genuine student.

4. The applicant’s protection claims, as outlined in a statement of claims submitted with his application were as follows:

   a.He left Lebanon because he feared harm due to threats from the brothers and other family members of his former girlfriend.

   b.He and his girlfriend had kept their relationship a secret, as her family was traditional and did not allow her to communicate with anyone of the opposite sex. She mentioned to the applicant that if her family, specifically her brothers and father, found out about their relationship, he would be murdered. They wanted a man for her who was successful in life and financially well off, whereas he worked for the minimum wage and had to support his widowed mother.

   c.One day, one of his girlfriend’s relatives saw them on the beach holding hands. One of her brothers immediately called her and told her to go straight home. That night, the applicant received a call from one of his girlfriend’s male family members, who told him to stay away from her or he ‘would never see the light of day.’

   d.The threats continued, with lit paper bags left on his doorstep and constant phone calls. This caused the applicant’s mother a lot of distress as she feared something would happen to him. They were on constant alert and the applicant feared leaving his house to buy groceries.

   e.The applicant decided to come to Australia on a Student visa as his ex-girlfriend’s family would leave his mother alone if they knew he had left the country.

   f.The applicant cannot return to Lebanon because his ex-girlfriend’s family have asked his neighbours and friends if they have seen him and made it clear that if they find out where he is they will find him and kill him. He fears that if he returns to Lebanon, the threats will continue, which will affect his mother.

   g.The applicant cannot relocate to another part of the country because his ex-girlfriend’s family members are well known in the community and they would certainly find him.

5. The applicant failed to attend his scheduled interview with the Department on 6 April 2017 and provided no reasons for his non-attendance.

6. On 12  April 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the applicant a Protection visa as they were not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.

   Evidence before the Tribunal

7. On 5 May 2017, the applicant applied to the Tribunal for a review of the Department’s decision. He provided a copy of the decision to the Tribunal for the purpose of the review and is taken to be on notice of its findings and reasons.

8. On 26 October 2020, the Tribunal wrote to the applicant through his migration agent inviting him to give oral evidence and present arguments relating to the issues arising in his case at a video hearing conducted by Microsoft Teams on 12 November 2020. The migration agent responded that the applicant would participate in the video hearing. However, in preparatory equipment testing with the Tribunal on 10 November 2020, he was unable to establish a video connection and agreed that the hearing could proceed by telephone.

9. On the afternoon before the scheduled hearing, however, the applicant contacted the Tribunal to seek an adjournment of 3-4 months so that he could engage a lawyer and obtain more documents. The Tribunal did not agree to this postponement and advised that the hearing would proceed as scheduled. 

   The hearing

10. The applicant appeared before the Tribunal by Microsoft Teams teleconference on 12 November 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

11. At the beginning of the hearing the applicant confirmed that the information submitted to the Department in his application was true and correct, with the exception of one aspect in his statement of claims which he asked to change. He said it was incorrect that his sister had passed away at a young age and that the only family he had left in Lebanon was his mother. In fact, he had an older sister in Tripoli, who was married with children and worked in [work sector]. He said he told his agent about this error at the time, but the agent had not corrected it. He commented that the agent had not communicated well with him, had not told him about his Department interview and had only recently told him about his Tribunal hearing. The reason he had sought to postpone his hearing the previous day was that he was not familiar with migration and review issues and was stressed as he and did not have the ability to deal with them.

12. The Tribunal responded that it was up to the applicant to choose and, if necessary, change his agent and that he had had ample opportunity over the past three years since he lodged his review application to do this, as well as to provide additional materials to the Tribunal, including, for example, an updated statement. The Tribunal understood that most applicants found the review process stressful but noted that the applicant had not provided any medical evidence to suggest he was unfit to participate in the hearing.

13. The Tribunal discussed with the applicant his background and experiences in Lebanon and why he fears returning there. Where relevant to his protection claims, the applicant’s evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

14. 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 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.

15. 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.

16. 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).

17. 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.

18. 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.

19. 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.

    Credibility

20. 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.)

    Analysis, Findings and Reasons

21. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

22. The applicant’s central claim is that he will be harmed by the family of his former girlfriend because after they discovered that the couple were in a relationship in 2012, they followed him and chased him from one place to another and threatened him. He fears that if he returns to Lebanon, they will kill him.

23. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed.  In reaching this conclusion, the Tribunal has had regard to the applicant’s vague and inconsistent evidence, the unpersuasive nature of some key aspects of his claims and other reasons detailed below.

24. The applicant’s evidence about the relationship with his former girlfriend, which was central to his claims, was vague and lacking in important detail. When the Tribunal asked for her name, the applicant said he preferred not to identify her, even by her first name. He claimed that the ‘love relationship’ with his girlfriend, whom he met in a coffee shop, had developed to the point that they were planning to get married and to settle down together, although they did not have sex. However, when asked when the relationship started, he initially said he could not remember, and later said it may have been in the middle or at the end of 2011.

25. Asked how long they were together before they decided to get married, the applicant first said they were together for around 12 months before they decided to take it to the next step, then shifted to say that they had been together for a few months before she mentioned to her family that someone was interested in marrying her. They were then spotted together, which was when the trouble with her brothers started. He said he did not know what happened to his girlfriend after this as he lost contact with her after speaking on the telephone a few days after they were spotted together. He told the Tribunal that he made no attempt to check on her well-being in the face of her family’s anger at their relationship. As discussed with the applicant, in the Tribunal’s view, this raises doubts that his girlfriend was as important to him as he claims.

26. The applicant was also vague as to when the problems with his girlfriend’s family members started. He initially told the Tribunal that it was a few months before he came to Australia in November 2012, then said that he could not remember when it was and later that it was more than seven months or 6-8 months before he came to Australia and around three or four months after he and his girlfriend started going out together.

27. Significantly, while the applicant claimed that he was followed and chased from one place to another and threatened by his girlfriend’s brothers, he confirmed that he never had any physical encounters with them in Lebanon and had never actually met them or anyone else in her family. He said he did not report them to the police because he did not know what to do as there was just him and his mother and anyone could take advantage of him. 

28. The applicant also claimed that he was receiving threatening phone calls ‘from the whole family’, up to the day before he left Lebanon, in which they threatened to do ‘the worst things’ and wanted ‘to retaliate’. However, he would not elaborate on what was said, only that the family just wanted to get rid of him and ‘to finish it off’. Nor would he elaborate on the warnings given to him by his girlfriend in their last telephone call, saying only that she told him : ‘one, two, three, was happening, be aware‘ and that her brothers were willing to do ‘this, this, this’ to retaliate.

29. While the applicant claimed that after he left, his mother was still receiving calls, when asked when this last happened, he responded that his mother told him everything was okay and had not mentioned it in a long time. The Tribunal did not find persuasive his insinuation that this was because he was his mother’s only son and she knew his health was bad because he ‘had fear in his head’.

30. The Tribunal also notes that the applicant’s evidence regarding his employment was inconsistent between his application form, his written statement and his evidence at hearing. He told the Tribunal that after completing a Bachelor of [Subject] in Lebanon he worked in retail, selling [items] in El Mina, Tripoli. In his statement of claims, he stated that he worked for the minimum wage and supported his widowed mother. By contrast, in his application form, he stated that he had never worked until the present time but was supported by his mother.     

31. The applicant confirmed at hearing that the reason he was afraid to return to Lebanon now was his fear of retaliation from his girlfriend’s family. However, apart from repeating several times that he was ‘in so much fear for his life’ and that he was ‘going to die’, he was vague as to who might harm him and how this might happen. After initially saying he would be killed by ‘God’, he then said he would die because ‘these people’ chasing him were ‘extremely dangerous’ and connected to ‘other big people’ and that in Lebanon, no one got arrested.  

32. As discussed with the applicant, had such powerful and well-connected people as he described been inclined to harm or kill him, in the Tribunal’s view, they could have done so while he was still in Lebanon for 6-8 months and the issue of his alleged relationship with his girlfriend was fresh in their minds. The Tribunal does not find credible that, having not done so then, the family will pursue him if he returned to Lebanon now, eight years after all contact with his former girlfriend ceased. The Tribunal does not find plausible his response that the reason the family did not harm him before he left Lebanon was because he shifted between his home in El Mina and his relatives secret holiday house in the mountains, especially given his claim that his girlfriend’s family would be able to find him wherever he lived in Lebanon if he returned (paragraph 4.g).  Nor is the Tribunal persuaded by the applicant’s assertion that ‘such people’ won’t forget, always want to retaliate and that someone like him was an easy target for them as he was weak, and they could make an example for others.

33. As discussed with the applicant, the credibility of his claims is seriously undermined by his delay in lodging his Protection visa application. While he told the Tribunal that the main reason he came to Australia in 2012 was to escape the situation with his girlfriend’s family, he only applied for a Protection visa in 2016, after his Student visa application was refused and his appeal to the Tribunal failed. The applicant’s comment that, after coming to Australia, he tried to start afresh and continue his education but couldn’t keep up so there was no other way for him but to apply for protection, compounds the Tribunal’s concerns.

34. For all the above reasons, the Tribunal finds the applicant not to be a credible, truthful and reliable witness. In the Tribunal’s view, the applicant fabricated his claims to achieve an immigration outcome.

35. The Tribunal, therefore, does not accept that the applicant was followed, chased or threatened with harm or death by the brothers or family of a woman, with whom he was allegedly involved in a love relationship Lebanon or their associates. The Tribunal does not accept that lit paper bags were left on his doorstep, or that he or his mother received constant threatening phone calls. It follows that the Tribunal is not satisfied that the applicant will be threatened, targeted or killed by the woman’s family or anyone else in retaliation for his alleged relationship with her if he returns to Lebanon now or in the reasonably foreseeable future.

1. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm in Lebanon for reason of his race, religion, nationality, political opinion or membership of any particular social group. The Tribunal finds that the applicant does not have a well-founded fear of being persecuted. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Lebanon, there is a real risk that he will suffer significant harm.

   CONCLUSIONS

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.

   Mara Moustafine
   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.

   …