1715524 (Refugee)

[2023] AATA 4489

1715524 (Refugee) [2023] AATA 4489 (16 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1715524

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:Dominic Triaca

DATE:16 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 16 October 2023 at 12:49pm

CATCHWORDS
REFUGEE – protection visa – Taiwan – small shop owner attacked by business competitors and threatened by loan sharks – some repayments made while shop operating but none and no contact since – no knowledge of amount currently owed – applied after holding working holiday and student visas – country information – reasonably effective police targeting criminal gangs – 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
BEH15 v MIBP [2019] FCAFC 184
DAJ v Minister for Immigration [2020] FCCA 2142
DAO v MIBP [2018] FCFCA 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 Immigration and Border Protection on 4 July 2017 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 Taiwan applied for the visa on 31 August 2016. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 9 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin 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.

9. Significant harm for these purposes is defined exhaustively in s.36(2A); s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subject to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

10. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. For example, where it would be reasonable for the applicant to relocate to an area of the country where they would not be at a real risk of harm. Under s.36(2B)(b) of the Act there is taken not to eb a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’.

11. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The Tribunal’s task of fact finding may involve an assessment of the applicant’s credibility. In this context the Tribunal is guided by the observations and comments of the Courts.[i] The Tribunal is to have regard to the difficulties facing asylum seekers and adopt a reasonable approach to matters of credit.

    Mandatory considerations

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Protection Claims and Delegate’s Decision

13. The delegate refused the visa application on the grounds set out in the claim. The delegate was not satisfied that there is a real chance that, if the applicant was returned to Taiwan, he will be persecuted for one or more of the reasons mentioned in s.5J(1)(a). Therefore, the applicant is not a refugee as defined in s.5H and the criterion in s.36(2)(a) of the Act is not satisfied.

14. The delegate found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant returning to Taiwan, there is a real risk he will suffer significant harm. Accordingly, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s.36(2)(aa) (delegate’s decision).

15. The Tribunal has read and had regard to the documents provided by the Applicant to the Department and the Tribunal, residential documents, relationship evidence, written application, applicant’s statement, and photographs, and the delegate’s decision. The Tribunal has also had regard to the relevant country information.

    Applicant Identity and country of reference.

16. The applicant claims to be a citizen of the Republic of China (Taiwan). He provided a copy of his passport to the Department. The delegate accepted the applicant’s identity. There is no evidence before the Tribunal to suggest the applicant Is not the person identified in the relevant application.

17. The Tribunal finds the applicant is a citizen the People’s Republic of China (Taiwan), which is also the receiving country for the purposes of the refugee and complementary protection assessments.

    Background

18. The Applicant is [Age] years old. He first arrived in Australia in December 2013 on a working holiday visa. He applied to extend his working holiday visa in 2014 and was granted a further 12-month extension until December 2014. He applied for a student visa in December 2015 which was granted in January 2016. He applied for a protection visa, the subject of this application in August 2016.

19. The Applicant made protection claims which are summarised as follows:

    (a)The applicant opened a [shop] in Taiwan. In order to set up the business, he used all of his savings as well as borrowing money from loan sharks.

    (b)As his business grew, his competitors blamed him for affecting their business and started to make trouble in his shop.

    (c)The applicant argued with these people and engaged in physical conflict.

    (d)A competitor was injured due to these physical conflicts and demanded that the applicant pay an unreasonably high amount of compensation or they would not stop making trouble for him.

    (e)The success of the applicant’s business began to decline, and his income wasn’t sufficient enough to cover his daily expenses and debt.

    (f)Loan sharks began to come to the applicant’s shop and threatened to hurt him if he did not repay on time.

    (g)The applicant was facing danger to his life every day in Taiwan, so he closed his shop and fled to Australia.

    (h)The applicant could easily be tracked down by loan sharks no matter where be moves.

    (i)The applicant fears his life will be in danger if he can’t repay his debt.

    (j)He says that although authorities may provide him protection for him once, they can’t always be there to support and help him.

    (k)He says that loan sharks are widely connected in Taiwan, and he could easily be found by them.

20. The Applicant gave evidence to the Tribunal in relation to his background, confirming his employment and travel history. He says that he confirmed that he was involved in a [shop] business which was ultimately unsuccessful and that he borrowed money from loan sharks to begin and facilitate the business. He confirmed that the basis of his application was a fear of reprisals from loan sharks in circumstances in which he had not and was unable to pay the loan sharks approximately 5 million Taiwan Dollars that he had borrowed.

21. The Applicant’s parents and brother remain in Taiwan in New Tai Pei. He lived in that village his whole life before travelling to Australia. He speaks to his family occasionally.

22. He says that prior to working in the [shop], he had previous experience in [a] market and a supermarket. He did not complete school. In Australia he studied [Subject] for a time but did not complete a certificate. In Australia he has worked in [a workplace]. He says that he has lived in Adelaide, Sydney and Melbourne. He now works in [an] industry in [work task] on a casual basis.

23. He says that he borrowed money from a loan shark who was introduced to him by a friend. He was paid in cash on multiple occasions. He borrowed approximately $2m Taiwan Dollars to purchase the business in about 2010. The balance of the borrowing was used to pay suppliers. He says he consistently paid the interest but did not pay the principle. He said that the [shop] business was struggling. He said that he closed the shop. He has made no payments since that time.

24. He says that he then spent 6 months working in casual jobs whilst he planned his trip to Australia. He did not make any payments during that period.

25. He says that due to the effluxion of time since leaving Taiwan he is unsure how much he owes now. He says it would be a ‘very high amount’, which seems likely given that a decade has passed since he arrived here. He says he has ‘no idea’ the exact amount.

26. He confirmed that he had experienced trouble with his competitors, and this had led to physical violence. Notably, the violence he was engaged in was between the competitors with the [business] as opposed to the money lenders.

27. He says that he was threatened by loan sharks that he would eb harmed if he did not repay the money. However, he also says he had no contact with loan sharks since he left the shop. They have not contacted him during his time in Australia, nor did they contact him during the 6-month period between closing the shop and travelling to Australia.

28. He said that he attempted to go to the police in response to threats, however police were unwilling to assist in what they regarded as a civil matter.

29. He says he is worried that he will be found if he returns because Taiwan is a small city and his family remain in the same area. He says that the police ‘may do something’ if he was attacked but they cannot watch him 24 hours a day.

30. He says that he is concerned that he would not be able to find work ‘properly’ in Taiwan. He says that the economy is better in Australia. Whilst this may be the case, the Tribunal does not consider that economic hardship issues fall within eh definition of significant harm save for the rare circumstances of extreme deprivation. The Applicant has a good work history in Australia and is able bodied. There is nothing to suggest he could not undertake similar types of employment in his home country as he can here. The Tribunal does not consider that there is any risk to the applicant in terms of securing future employment in Taiwan that is not encountered by the general population. For these reasons, the Tribunal does not consider that there is a real risk fo significant harm to the Applicant arising by reason of his economic circumstances.

31. Taiwan is generally regarded as a low crime environment with a reasonably effective police force. Open-source country information indicates that the Taiwanese Police have been targeting criminal gangs for several years now and that protection from criminal gangs (including money lenders) would be available to him from the Police and authorities in Taiwan if he returns there. For example, Taiwanese Police are considered an effective force[1] and they actively target criminal gangs.[2] The judicial process is widely considered to be fair.[3] Corruption in government is generally low[4] and whistle blower protections are enshrined in law.[5]  In these circumstances, the Tribunal considers that the Applicant would be able to go to authorities in the event that he is threatened upon his return home. It does not accept the Applicant’s claims that the authorities would not be interested in assisting him.

    [1] ‘Taiwan 2020 Crime & Safety Report’, 17 March 2020, Overseas Security Advisory Council, US Department of State, p1

    [2] ‘Law and Order: Taipei police commissioner reassures public on safety’, 7 May 2021, Taipei Times.

    [3] ‘BTI 2020 Country Report: Taiwan’, 29 April 2020, Bertelsmann & Stiftung, p 10.

    [4] ‘Corruption Perceptions Index 2020’ 28 January 2021, Transparency International, p2.

    [5] ‘BTI 2020 Country Report: Taiwan’, 29 April 2020, Bertelsmann & Stiftung, p 29.

32. The Tribunal did not find the Applicant’s evidence convincing.

33. The Applicant says that he is scared of illegal money lenders finding him upon his return home. However, he had no real detail regarding how that was likely to occur. He says he has had no contact with the illegal money lenders since closing his shop 6 months before he travelled to Australia. This evidence weighs against the Applicant. The Tribunal considers it highly unlikely that the Applicant’s fears are genuine in circumstances in which he says he lived and worked in his village for 6 months directly after the shop was closed without any contact from the money lenders.

34. The Tribunal considers that if creditors, gangsters, or illegal money lenders or people involved in organised crime were concerned that he had failed to repay debts, they would have contacted him during that period.

35. The Tribunal considers that if the money lenders did not contact him in relation to his repayment obligations during the first 6 months after closing the business, it is not likely they will do so a decade later. This view is strengthened by the fact that there is nothing to suggest the Applicant has had any contact with any party in relation to loans during the decade he has resided in Australia. This suggests he does not face any real risk of harm upon his return home.

36. The Applicant’s evidence to the effect that he has ‘no idea’ the amount of money he owes the money lenders defies credibility. The Tribunal considers that a genuine person in the Applicant’s situation, claiming to fear returning home due to debts, would have a reasonable idea of the extent of their financial obligation, even if they could not state the exact number. The Tribunal found the Applicant’s lack of information in relation to his financial liabilities puzzling for a person claiming to fear returning home due to the extent of that liability.

37. The Tribunal does not accept that the Applicant borrowed money $5million Taiwanese dollars from an illegal money lender for the purpose of funding a [shop] business in Taiwan. It does not accept that he failed to repay significant sums to money lenders in circumstances in which he faced threats of harm were he not to do so.

38. The Tribunal does not accept that the Applicant was or is of adverse interest to money lenders, illegal money lenders, gangsters or criminals involved in organised crime.

39. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future.

40. Further, even if the Tribunal were minded to accept that the Applicant was a person who had borrowed significant sums from a private money lender, and that he was physically threatened as a result of being unable to meet his repayment obligations, the harm that the applicant claims he will suffer if he returns home is not for a convention reason; ie there is no suggestion he has a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. The independent country information before the Tribunal does not support the proposition that the Applicant would be denied state protection from money lenders.

41. Having considered all the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his membership of a particular social group or any other reason set out in s.5J(1)(a)of the Act if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds he does not satisfy the criterion in s.36(2)(a) of the Act.

42. As the Tribunal has found the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.

43. Having considered all the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhumane treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future.

44. Accordingly, 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 Taiwan there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act.

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).]

3. There is no suggestion that the applicant satisfies 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

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

   Dominic Triaca
   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.

   …

   
   

[i] See for example summaries of the principles relating to credibility findings in DAO v Minister for Immigration and Border Protection [2018] FCFCA 2 at [30]; DAJ v Minister for Immigration [2020] FCCA 2142 at [69]-[70]; BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32] – [34]