1724344 (Refugee)

[2023] AATA 1509

1724344 (Refugee) [2023] AATA 1509 (4 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724344

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nora Lamont

DATE:4 May 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 04 May 2023 at 3:35pm

CATCHWORDS
MIGRATION – protection visa – Malaysia – fear of harm from illegal money lender – harassment, threats and beating – inaction by police – delay in applying for protection – period as unlawful non-citizen – no repayments while in Australia – country information – public resources for debtors and initiatives by authorities – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 September 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 Malaysia, applied for the visa on 20 July 2017.

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

4. The delegate refused the visa as the application was vague in its descriptions.

5. There are no non-disclosure certificates on the applicant’s file.

   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 (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.

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, 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).

9. 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.

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

12. The issue in this review is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J(1) and if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Malaysia, there is a real risk that she will suffer significant harm.

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

14. The applicant travelled to Australia on a valid Malaysian passport and states that she is a national of Malaysia. The delegate had no concerns with the applicant’s identity therefore the Tribunal has assessed the applicant’s claims against Malaysia as her country of nationality and receiving country.

15. The applicant was born on [Date] in Selangor Malaysia. She is divorced and has [children] who all remain in Malaysia. She has [brothers] and sisters. She did not receive much education and completed grade [Number] in primary school.

    Tribunal Hearing

16. The applicant first arrived in 2014 but did not apply for her protection visa until 2017. When asked why she waited three years and was unlawful she said she didn’t know that she was going to go, she didn’t even know she was coming to Australia until her family took her to the airport.

17. The applicant explained that she owned a small [business] and had one employee. She didn’t have a lot of money and she saw a phone number on a paper for money lenders and she called it. She met the money lender in a coffee shop, and they gave her money in cash. She asked them if they were legal money lenders to which they said they were. She then met with them and borrowed RM 60,000. She did not sign a contract and she said every month she needed to make repayments. She had used the money to buy products for the business. I asked her if she asked them for proof that they were legal money lenders. She said it wasn’t until later that she got to know they were illegal money lenders. She said she called a friend and they told her that they were not legal money lenders.

18. She couldn’t afford to make the repayments and the interest rate was really high. The money lenders started coming to the business and throwing red paint on it. They would threaten her. She said the interest rate was 14-15 percent. They started coming to her home and bothering her. The Tribunal asked her how they knew where she lived, and she said they had followed her. She said they came to the business everyday for a week and then she closed the business. She said in total they came to her business five times and to her home six to seven times. When asked if her family saw the Ah Long she said they only came when she was alone.

19. The Tribunal queried whether she went to the police, and she said she did, but the police told her because it was the Ah Long there was nothing they could do. She guessed that the police were afraid also. In total she paid them RM 5000. The Tribunal asked if she had any documentation or photos and she said she didn’t have a mobile phone with a camera on it at the time.

20. The Tribunal asked the applicant why in her original claims she said she was beaten by the money lenders. She said she was hit in the face, and she called the police, but they didn’t care. She called the police two times, but they failed to help her. She said by this time the Ah Long were telling her that they wanted RM 6000-8000 per month in payments.

21. The applicant said she wants to stay in Australia and work at her [job] she has in [City].

22. The Tribunal asked her if she has made any repayments to the money lenders since she has been in Australia and she said no she has not. The Tribunal asked if she thought about moving to another part of the country and she said no, as no matter where she goes they will find her.

    Country Information

    Victims of Loan Sharks [1]

    [1] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021.

    3.109 Loan sharks or ‘pay-day-financiers’(unlicensed lenders, referred to as ‘Ah Long’ by the Chinese Malaysian community, ‘Chettiar’ by the Indian Malaysian community, and ‘Ceti’ in Malay), carry out money lending activities without a licence, charging high interest rates to do so. Loan sharks operate very publicly in Malaysia and, while the practice is illegal, advertisements listing phone numbers and offers of cash loans appear on public property, including lamp posts and utility boxes. Media report loans carry an annual interest rate of 24 to 60 per cent; others report rates of 30 to 40 per cent per month; or up to 15 per cent per day. In-country sources advise that loan sharks in Malaysia do not seek ‘protection money’.

    3.110 Sources report loan sharks enter into ‘sell and purchase agreements’ in Sabah, whereby the borrower’s house is used as collateral for the loan. DFAT is aware of reports of houses valued up to MYR 1 million (AUD 320,000) being used as collateral for a loan of MYR100,000 (AUD32,000). If the borrower defaults on their loan, the loan shark exercises the sell and purchase agreement to transfer the house into their name. Sources report lawyers are facilitating the sell and purchase agreements, described as a house sale agreement disguised as a loan agreement, in return for a cut of the house sale profits. Sources claim borrowers agreeing to sign their house over as collateral are under significant duress, or lack sufficient education to understand the agreement they have signed.

    3.111 DFAT is aware of a case of an individual in peninsular Malaysia who engaged a loan shark to obtain a loan to repay their mortgage, signing the house over as collateral under a ‘sell and purchase agreement,’ after becoming involved in gambling following the death of their spouse. When unable to repay the loan shark, the individual’s family supported them to engage a formal credit agency to obtain a loan to repay the loan shark. DFAT understands loans ranging from MYR200,000 to MYR300,000 (AUD63,000 to AUD95,000) accompanied by payment plans have been arranged by formal credit agencies to repay loan shark debts. However, not all debtors may be aware of the availability of such services.

    3.112 Sources report that an individual who is unable to service a debt from a loan shark risks threats or actual physical violence, having their home splashed with red paint (culturally understood as a symbol that an individual has defaulted on a loan shark and brought shame to their family), and/or having their families’ physical safety threatened. In February 2021, police arrested three people, believed to be involved in illegal money lending, after they threatened to torch and throw paint on the home of a woman who had allegedly refused to settle a debt of MYR11,000 (AUD 3,500). Sources claim that loan sharks engage gangsters to collect debts and harass and threaten borrowers and their family members, and that borrowers and their family members have been shot and had fingers cut off. Due to the illegal/underground nature of loan shark activity, DFAT is not able to verify these claims. There is significant societal shame associated with not being able to repay a loan shark. Sources report some people see suicide as the only honourable way out of being unable to repay a loan shark debt. DFAT is aware that those in debt to loan sharks have been DFAT Country Information Report MALAYSIA (JUNE 2021) 41 counselled by intermediaries to place their family in a safe location and travel overseas to earn a foreign income to repay their debt faster, and to reduce risks and shame to their family.

    3.113 DFAT understands authorities tend to be unsympathetic towards individuals who have accessed loan shark services, regarding them as having participated in an illegal practice. According to local media, the Commercial Crime Investigation Department reported 3,903 cases and arrested 2,698 people in relation to loan scams between January and November 2018, with total case-related losses estimated at MYR36 million (AUD11.4 million). Local media also report loan sharks have become more publicly visible and more ‘corporate’, in recent years, and have increased promotion of their services on social media platforms such as Facebook and WeChat. In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates were becoming more aggressive. DFAT is not aware of any significant enforcement action in this area.

    3.114 The MCA’s Public Services and Complaints Department (PSCD) plays an intermediary role between loan sharks and Chinese Malaysian victims of loan sharks who are unable to repay their loans, and reportedly receives an average of 500 to 600 complaints regarding loan sharks each year. According to local media, the MCA reported that 16 cases of people owing loan sharks over MYR2.11 million (AUD670,000) had arisen in the first 19 days of January 2019 alone. Local media also reported that, in 2020, the PSCD received 140 complaints from victims who said illegal money lenders went after their families to try and extort them for payment. In 2015, the PSCD reported over 70 per cent of borrowers were Chinese Malaysian. Sources report the MCA can negotiate loan repayment settlements with repayment rates negotiated down to match the government rate.

    3.115 The Malaysian Muslim Consumers Association (PPIM), which provides services predominantly for the Malay community has an established call centre that helps to educate (chiefly Malay) people on the dangers of borrowing from loan sharks and suggests alternatives, as well as helping victims to settle their debts. The PPIM maintains a Malay language website (ahlong.ppim.org.my) where people can report loan shark cases, and which also lists details of prior cases. Sources provide vastly differing views on the reasons individuals engage illegal moneylenders. Some claim that up to 80 per cent of borrowers are supporting gambling activities and other debts. Others claim borrowers are public servants trying to cover daily expenses such as children’s education, or businesses excluded from mainstream finance due to insufficient documentation, bankruptcy or a poor credit history.

    3.116 The Moneylenders Act (1951; amended 2003 and 2011) gives police considerable investigative powers against alleged loan sharks. Police can visit, enter, inspect or search premises without a warrant, and seize moveable properties and business documents to assist with investigations against alleged loan sharks. Individuals involved in illegal moneylending activities in Malaysia can be convicted under Section 5(2) of the Moneylenders Act, which carries a fine of between MYR250,000 and MYR1 million (AUD80,000 – AUD320,000), or a jail term of up to five years, or both. Police have made several recent high-profile arrests and investigations of syndicates. In June 2020, police in Selangor arrested 18 people believed to be involved in loan shark activities. The arrests were part of a larger operation by police, tagged ‘Ops Vulture,’ which involved raids in five locations, culminating in 29 arrests between January and June 2020. In September 2019, the RMP arrested 21 people in Johor allegedly involved in syndicates illegally loaning money. In January 2019, the RMP arrested 13 suspects allegedly involved in a syndicate providing fraudulent loan applications resulting in total bank losses of MYR10.35 million (AUD3.28 million).

    3.117 The general dampening of the economy during the COVID-19 pandemic may have impacted upon loan sharks. PSCD chief Datuk Seri Michael Chong reportedly said that ‘even illegal money lenders have 42 stopped advertising their services since the start of the MCO because of the uncertainty in getting their money back.’ 3.118 Very limited research is available on loan sharks and the individuals that engage these services, possibly due to their links to gangs and corruption. DFAT is unable to verify what percentage of borrowers are supporting other illegal activities, their likelihood of seeking police protection, or the level of protection offered by police. DFAT assesses those who are unable to service debts to loan sharks, and their family members, can face societal discrimination due to familial shame, and may also face a real or perceived risk of harassment and violence from loan sharks and/or gangsters. However, DFAT notes formal credit agencies are able to consolidate loan shark debts and provide payment plans, and therefore engaging such agencies is an option to mitigate against potential risks posed to those in debt.

    Findings and Conclusion

23. The Tribunal accepts that the applicant borrowed RM65,000 or AUD$21,000 from money lenders sometime in 2013. However, for the reasons that follow the Tribunal has concluded that the decision under review should be affirmed.

24. The applicant first arrived in Australia in 2014 and then waited three years before applying for a protection visa. This period of time is significant, and the Tribunal considers that if the applicant really feared the situation in Malaysia she would have applied as soon as she arrived, not wait for three years.

25. The applicant stated that she didn’t work during the first three years she was in Australia. She said that her sister helped her financially, yet her sister was in Malaysia with her own family. The Tribunal considers that the applicant would need a significant amount of money in order to survive for three years without working at all. The Tribunal does not accept that the applicant spent three years in Australia without work.

26. Since the applicant has been in Australia some nine years, she has not paid back any of the funds she claims she owes to the money lenders. The applicant has had time to consider paying her debt from here, but she has not.

27. The Tribunal does not accept that the applicant was beaten by the money lenders or that she had red paint splashed on her business. The applicant said they beat her at her home and that they came to her house six or seven times, but no one was ever home except her. The Tribunal would also expect that if the applicant was harmed the police would have been of assistance.

28. There are resources available to the applicant that she can access in Malaysia. The applicant can get assistance from the Malaysian Chinese Association’s Public Services and Complaints Department who acts as an intermediary between loan sharks and Chinese Malaysian victims who are unable to repay debt, negotiating loan repayments with lower rates. [2]  The applicant would also be given protection from the state as they have cracked down on illegal money lenders.

    In October 2019, media reported that the RMP planned to embark on a ‘major war’ against loan sharks, following reports that Ah Long syndicates were becoming more aggressive. DFAT is not aware of any significant enforcement action in this area. [3]

    [2] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021, section 3.114, p.41, 20210629092134

    [3] 'DFAT Country Information Report Malaysia', Department of Foreign Affairs and Trade, 29 June 2021

1. The Tribunal has also considered that the applicant has no documentary evidence in relation to her claims, no photographs, no police reports, and no business documents to back up her claims.

2. For the reasons above the Tribunal does not accept that if the applicant returns to Malaysia, she will face a real chance of persecution from money lenders, or anyone associated with them. The Tribunal finds that the applicant does not face a well-founded fear of persecution as per s 5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s 5H(1).

3. Nor does the Tribunal accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that the applicant will suffer significant harm from money lenders or their associates. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in 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.

   Nora Lamont
   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.

   …