1717919 (Refugee)

[2023] AATA 2431

1717919 (Refugee) [2023] AATA 2431 (11 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717919

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Luke Hardy

DATE:11 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 11 May 2023 at 3:08pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – land dispute –no genuine fear of being persecuted there for any reason – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 499

Migration Regulations 1994, Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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

2. The applicant, [Mr A], is a citizen of Malaysia. He arrived in Australia on a 3-month visitor visa on [date] March 2017. He  applied for the PV on 24 May 2017. The delegate refused to grant the visa on 8 August 2017.

3. [Mr A] appeared before the Tribunal on 11 May 2023 to give evidence and present arguments.

4. The Tribunal hearing was facilitated via MS teams video by an interpreter in the Malay and English languages.

5. There were no issues preventing clear communication through the interpreter, notwithstanding that, at one stage, there was a need for the interpreter to let a vocally assertive cat out of the room in which he was interpreting. This did not in any way compromise the hearing. I invited the interpreter to let the cat return if, say, she started meowing from the other side of his door, which I anticipated she might do imminently, but no such occasion arose. As the Migration Act says, Tribunal hearings should, amongst other things, be informal.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).

9. Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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.  

10. 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

11. 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

    The issues

12. The key issue in this case is whether, on accepted evidence, [Mr A] is entitled to Australia’s protection as a refugee or, if not, on complementary protection grounds.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Original claims

14. [Mr A], from Selangor, claimed originally to have purchased a parcel of land “from a friend” who he later described ss a stranger recommended to him by a friend. He claimed the purchase was properly documented. He claimed he commenced building on the land and was stopped by two men who said the land was theirs. He said they threatened to kill him if he did not hand the land over to them. He claimed the friend who sold him the land moved to China. He said the two men warned him not to involve the authorities or else they would kill him. He claimed he stopped building on his land, at least temporarily, and came to Australia for his safely. He said there was nowhere safe for him to live in Malaysia, apparently because his family lived, or needed to live, with him.

    Evidence to the Tribunal

15. [Mr A] claimed that his purchase of the and was entirely legal. He claimed he received the Deed of Title for the land. He said he knew it was legal because he saw his name on the Title. I put to him that title deeds in Malaysia, as elsewhere, do not bear the names of vendors or buyers[1]. In reply, [Mr A] changed his evidence and said the vendor gave him a lot of document and told him they were genuine. He said he believed the vendor because he trusted the friend who introduced him. I asked him to confirm that he was now claiming not to have seen his name on the title deed and he said this was correct. He gave no explanation for the contradiction.

    [1] “How to conduct a land title search in Malaysia?” iProperty.com, 6 July 2022,

16. [Mr A] said he purchased the land ten years ago, which would have been in 2013. He said he tried to commence building on it in 2014 when he was forced to stop by the two men described earlier. I asked him what has happened to the land and he said it remains vacant with the early stages of an incomplete construction on it. He changed this evidence later in the hearing when he said he has no details about what has happened to the land. I asked him if he could not find out from hithe intermediary friend or from his own lawyer and he said that no lawyers had been engaged in relation to the transfer or ownership of the land.

17. In any event, [Mr A] did nothing to the land for three years and then came to Australia in 2017. During this period, according to his evidence, the land was not taken or seized and he was not harmed. It was hard to discern during the hearing just what his claims about future persecution might happen to be.

18. I put to [Mr A] that Malaysia has an established system of law and practice in property and equity[2]. He said that this is correct. I asked him if there was any evidence of anyone in the described dispute having taken this matter to the appropriate authorities and he said nobody had done so as far as he knew.

    [2] “English Law in Malaysia,” Law teacher, 21 September 2021, Teo Keang Sood , “ROLE OF EQUITY AND THE APPLICATION OF ENGLISH

19. I asked [Mr A] where he had lodged or stored the title deed. In reply, he said he had stored it in his car. I asked him where his car was now and he said it was at the airport. I asked him why he would have left this car parked for three months or indefinitely at an airport. I referred to airport parking fees possibly being quite steep. [Mr A] then said he had asked a cousin to fetch the car, the cousin then discovering the car was not there. I asked if the car park staff told the cousin where the car had been moved to or stored. [Mr A] then changed his evidence, saying he did not park at the airport but at a “temporary car park.” I asked if that carpark was staffed and he said it was. I asked if the staff told the cousin where he would find the car and he said the staff did not because it had been left too long. [Mr A] seemed to be improvising his evidence here: it was inconsistent and struck me as being far-fetched.

20. I was interested to know if any banks had been involved in [Mr A]’s acquisition of the land since, had there been a mortgage, the lending bank should have held the title. [Mr A], however, told me that no banks were involved and that he had borrowed a substantial portion of the purchase price from his first wife. He said he had promised to repay her in full. I asked him what he meant by “first” wife and he said he was now divorced and remarried: he had “met” a woman, last year on [social media], who lives in Perak and they had been able to marry without ever having physically met according to Malaysian Islamic Council regulations. I asked [Mr A] if he had repaid his former wife in full as promised and he said he had repaid half of what he owed her before coming to Australia and had then stopped. I asked why he had stopped and he said his promise to repay her was still good. I asked if he came to Australia to abscond from a debt to his former wife and he said he had not.

21. I asked [Mr A] if he knew and understood what criteria are involved in determining whether a person is entitled to a PV. He said he did not. He said he knew that it was for people seeking protection. He said he did not know about PVs until after he came to Australia. He said he came here genuinely intending just to have a holiday and to relax. He said he was at a coffee shop in Melbourne a week after arriving and struck up conversation with a Malaysian. He said he told the Malaysian his story. He said the Malaysian told him he would have to return to Malaysia within three months, which his evidence in this matter shows he already knew, and recommended he apply for a PV. I questioned [Mr A] having come to Australia for a holiday, which essentially means a temporary break, given his claims about being unable to live anywhere in Malaysia in safety for the reasonably foreseeable future.

22. By the end of the hearing, [Mr A]’s main claims changed substantially. He said he believed that the title to his land, which he had previously described as genuine, was false, which was as much as to say he believed the land was not legally his after all. He said he never should have trusted the friend who introduced him to the vendor. I put to him that in this context it was possible that the two men owned, or represented the interests of the real owner of, the land; he then said this was correct. I then asked [Mr A] to tell me what he feared would happen to him if he returned to Malaysia.; I had to ask him twice, and even after the question was repeated, and even after I gave him much time to reply, there was only silence. I asked him if nothing potentially relevant to his application and/or the Tribunal’s jurisdiction would happen to him and he said, “Nothing.” I asked him if he had any other potentially relevant claims and he said, “Nothing.” I put to [Mr A] that in the circumstances, it might be hard to make a decision in his favour and invited him to think further on whether he might have any potentially relevant claims, and he repeated, “Nothing.”

    Findings in relation to s.36(2)(a) of the Act

23. In determining whether a protection visa applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of an applicant’s claims, I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. I am also mindful that if I make an adverse finding in relation to a material claim made by an applicant but am unable to make that finding with confidence I must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]

    [3] MIMA v Rajalingam (1999) 93 FCR 220 .

    [4] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

24. The mere fact that a person claims a fear of harm for a particular reason does not establish the genuineness of the fear or that it is either “well-founded” or for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or it amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.[5] Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim. It remains for an applicant to present evidence and advance arguments adequate to enable the Tribunal to make a favourable decision. There is no burden upon the Tribunal to make out a case that an applicant has failed to advance adequately.[6]

    [5] 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

    [6] Sun v MIBP [2016] FCAFC 52 at [69].

25. [Mr A]’s claims are entirely unsupported. Furthermore, they are undermined by inconsistency, implausible assertions and what I confidently regard as factual improvisations. It is hard for me to accept even the simple assertion about the land having been purchased. Just supposing I do, the facts n this case do not suggest any more than that [Mr A] ran out of money. It is even hard for me to make findings on whether his claims about the loan are true; if they are, then it appears he came to Australia motivated by a desire to avoid repaying it.

26. In any event, I find [Mr A] a generally unreliable witness in this matter, except for the fact that he claims that nothing potentially relevant will happen to him in the event of his return to Malaysia. I take that to mean that he has no genuine fear of being persecuted there for any reason.

27. On the evidence before me, I am not satisfied that [Mr A] has well founded fear of being persecuted in Malaysia in the reasonably foreseeable future for any reason cited in s.5J(1)(a). His claimed fear of being persecuted is not well founded. He is not a refugee.

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

    Findings in relation to s.36(2)(aa) of the Act

29. Having concluded that [Mr A] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

30. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).

31. “Significant harm” for these purposes is exhaustively defined 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 subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.

32. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.

33. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.

34. 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. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

35. Accepting that [Mr A] is a national of Malaysia, I find that Malaysia is the receiving country in this matter.

36. [Mr A]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed for want of credibility and/or for not meeting the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [Mr A]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.

1. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Malaysia, there is a real risk that [Mr A] will suffer significant harm as exhaustively defined under s.5(1) of the Act.

2. Accordingly, I am not satisfied that [Mr A] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   Conclusions

3. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in s 36(2)(a) or (aa) for protection visas. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.

   DECISION

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

   Luke Hardy
   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.

   …

   
   

LAND LAW IN THE MALAYSIAN TORRENS SYSTEM,”