1724937 (Refugee)

[2021] AATA 2010

1724937 (Refugee) [2021] AATA 2010 (10 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1724937

COUNTRY OF REFERENCE:                   Afghanistan

MEMBER:Nora Lamont

DATE:10 MAY 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 May 2021 at 8:56am

CATCHWORDS
REFUGEE – protection visa – Afghanistan – adverse information – migration fraud – incorrect information provided in visa applications – bogus documents – member and follower of the Taliban – no response to ss.424A and 424(2) invitation – not entitled to appear before the Tribunal – political opinion – member of the Nangarhar Peace Council – threatened by the Taliban – credibility concerns – document fraud – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 424, 424A, 424C, 425, 438
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 19 September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Afghanistan, applied for the visa on 12 February 2015. The delegate refused the visa as they did not find the applicant to be credible.

3. On 19 April 2021, the Tribunal wrote to the applicant pursuant to sections 424A and 424A(2) of the Act inviting him to comment on or respond to adverse information contained in Departmental and Tribunal files. The Tribunal is satisfied that this invitation was properly dispatched to the applicant, who failed to provide the information within the prescribed time for responding. The due date for a response from the applicant was 3 May 2021 and no response to it has been received by the Tribunal.

   The first particulars of the information are:

   Chain of migration Fraud

4. A copy of an application for an offshore Humanitarian visa from 2005 in which you are an applicant and your name as [Alias 1] with a date of birth [Date 1]. You denied at the Departmental interview that you were the applicant above and that you had ever been known by any other name. Yet the photographs and biometrics of the Department indicate it is you.

5. For the current application you state your name is [Alias 2] with a date of birth [Date 2]. Yet contained in the Departmental and Tribunal file is information before the Tribunal that indicates you are not [Alias 2] you are [Alias 3] son of [Mr A], brother of [Mr B], [Mr C] and father of [Mr D].

6. You were sponsored to Australia by your niece [Ms E] on a Sponsored Family Visitors’ visa (Sublcass 600) however information before the Tribunal indicates that she is not your niece, she is your sister-in-law. She lodged a spouse application sponsoring [Mr C] who is your brother. Intelligence before the Tribunal indicates that there has been a chain of migration fraud within your family and you are a part of this migration fraud

7. This information is relevant as it contradicts the information you have given to the Department and the Tribunal. This leads the Tribunal to believe that you have applied for numerous visas under different names and you (and your family) have been fraudulent in your applications for migration and have used bogus documents. The consequence of the Tribunal relying on this information is that it would form part of the basis for the Tribunal affirming the decision under review.

   And the second particulars of the information are:

8. A report that you are a member and supporter of the Taliban. The Tribunal has before it information that you are a member and follower of the Taliban and that you claimed in your protection application that you have a wife and children in an unsafe area in Afghanistan for migration purposes. The same information indicates as above that you are not [Alias 2] rather that was a name you made up for migration purposes.

9. This information is relevant to the Tribunal as it may lead the Tribunal to find you do not face a real risk of significant harm upon return to Afghanistan for the reasons claimed. The consequence of the Tribunal relying on this information is that it would form part of the basis for the Tribunal affirming the decision under review.

10. Where an applicant is invited to provide comments or response to information, or to provide further information, in accordance with sections 424A and 424(2) of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to section 424C of the Act.

11. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 425(3) of the Act, unless it exercises discretion to permit this.

12. Following careful consideration, the Tribunal has decided not to exercise its discretion to permit the applicant to appear before it to give evidence and present arguments.

13. Accordingly, following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation issued pursuant to sections 424A and 424(2) of the Act.

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

    Criteria for a protection visa

15. 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.

16. 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.

17. 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).

18. 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.

19. 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

20. 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

21. According to the protection visa application, the applicant claims to be a citizen of Afghanistan. Whilst the applicant has multiple names and has applied for several visas under different names the Tribunal is none the less satisfied the applicant is a citizen of and Afghanistan is therefore the receiving country for the purpose of assessing the applicant's claims for protection.

22. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that he is not excluded from Australia's protection obligations under s.36(3).

23. The issues in this review are 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 him being removed from Australia to his receiving country of Afghanistan, there is a real risk he will suffer significant harm.

    Documentary evidence before the Tribunal

24. The Tribunal has the following documentary evidence before it:

    ·     The Tribunal has before it the Departmental file which includes a Form 842 paper file for an Application for an Offshore Humanitarian Visa dated 14 February 2005 and under the name of [Alias 1] born in Nangarhar Afghanistan and is the husband of [Ms F] the main applicant.

    ·     Included in the Departmental file is an Information Report on the [applicant’s] family Chain Migration Facilitated by Identity Fraud and Exploitation of Visa Programmes dated 4 October 2016.

    ·     A copy of an Afghanistan driver’s license (translated) in the name of [Alias 2].

    ·     An Islamic Republic of Afghanistan The High Peace Council Secretariat dated October 2010 (unofficial translation).

    ·     Passport in the name of [Alias 2] with a date of issue 2011.

    ·     A Islamic Republic of Afghanistan Ministry of Interior Census Bureau Registration Card for [Alias 4]. (Translated)

    ·     A marriage certificate (translated) for [Ms G] married to [Alias 4] no date on the certificate.

    ·     A penal clearance (translated) from Afghanistan in the name of [Alias 3] S/O [Mr A].

    ·     A statement made by [Alias 3] dated 6 February 2015.

    ·     A Form 80, Form 866 and a 956 Appointment of a Representative. 

    ·     A letter to the Tribunal requesting priority processing.

    ·     3 Separate dob in emails stating he is not who he claims to be and came under false pretenses.

    ·     A dob in letter claiming the applicant is a supporter and member of the Taliban.

    ·     A copy of the applicant’s AAT decision dated 12 September 2014 remitting his application for a visitors’ visa.

    Claims for Protection

25. The applicants claims for protection summarised by the delegate are as follows:

    ·He was a member if the Nangarhar Provincial Peace Council and was threatened several times because he opposed the Taliban’s policies and refused to obey their orders and demands.

    ·The Taliban threatened that, if they found out he was an American spy, he would be hung form the neck in the trees in front of his house.

    ·In October 2014, a prominent Taliban commander and five Taliban Militia were killed by American troops in Surkhrod district of Nangahar province. They had been on Surkhrod because the peace council invited them and Hezb-e-Islami to peace talks.

    ·The peace talks had been the applicant’s idea. After the killing, he went to Kabul, because he feared retaliation.

    ·In January 2015, the applicant’s family received a letter from the Taliban, holding the applicant accountable for the killing of the commander and five militias. He was also accused of being an American spy.

    ·The letter said the applicant should surrender himself to face justice. Otherwise, the Taliban would kill the applicant and his family members.

    ·The applicant’s family moved to Pakistan.

    ·If the applicant returns to Afghanistan, he will be harmed or killed by the Taliban.

    Credibility

26. Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482: -stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

27. The Tribunal also accepts that 'if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt'. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

28. The benefit of the doubt should, however, should only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

29. When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers.

30. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

31. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

    Section 438

32. Included in the Departmental file was a s438 Certificate and Notification Regarding Administrative Appeals Tribunal’s Discretion to Disclose Certain Information under s438 of Migration Act 1958.

33. The Tribunal has a discretion whether or not to disclose the material; however the Tribunal “should effect a satisfactory compromise between the demands of disclosure and confidentiality by disclosing as much as possible of the substance, but not the detail, of the material”. [1]

    [1] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FRC 567

34. In this case the Tribunal has chosen to disclose the material in a way that does not give to much detail.

    Analysis and Findings

35. The Tribunal is not satisfied that the applicant or his claims for protection are credible for the following reasons:

36. The applicant in his written application for protection claimed he was not known by any other names. However, Departmental records which the Tribunal has shows that he was a dependent on an application for an offshore Humanitarian Visa in 2005. His name on the application was [Alias 1] with a birth date of [Date 1]. The biometrics provided with both applications are identical and when questioned at the Departmental interview the applicant denied that he had been known as [Alias 1]. The Tribunal is satisfied that both applications are from the same person and that the applicant has fraudulently claimed to be two separate people. [2]

    [2] [Department file number]

37. Information before the Tribunal which is sensitive in nature and from more than three sources indicate that the applicant’s name is not [Alias 2] or [Alias 1] but his real name is [Alias 3]. [3]

    [3] [Department file number]

38. Further intelligence contained within the Departmental file and backed up by sources who have contacted the Tribunal the applicant is the son of [Mr A], the brother of [Mr B] and [Mr C] and the father of [Mr D] all of whom have been implicated in chain migration and fraud. [4]

    [4] [Department file number]

39. The applicant arrived in Australia [in] November 2014 on a subclass 600 Visitors visa which was remitted by the AAT [in] September 2014. The review applicant was the applicant’s Niece who claimed that due to her father’s death her Uncle was more like a father to her. However, since that time the Tribunal has received reliable information that the applicant is not her Uncle but is her brother-in-law.[5]

    [5] AAT Decision [Case number]

40. The applicant then proceeded to apply for a protection visa which is the subject of this review on 12 February 2015 with the claims above.

41. Given that the information and evidence before the Tribunal indicates the applicant is not who he says he is, and given that he has been identified as totally different person with a different name the Tribunal does not accept that the applicant was a member of the Nangarhar Peace Council, or that he was threatened by the Taliban. Nor does it accept that he lived in Pakistan and was forcibly removed from Pakistan and that he went back to the same village where he claimed he would be killed by the Taliban in Afghanistan. The Tribunal does not accept any of the applicant’s claims nor does it accept that his name is [Alias 2].

42. The Tribunal received information that the applicant (whilst he claims that he cannot return to Afghanistan as he will be killed by the Taliban), is himself not only a supporter of the Taliban but also a member of the Taliban. Given that the Tribunal has found that the applicant is not who he claims to be and given that the Tribunal does not accept the applicant’s claims the information that the applicant is Taliban may very well be true.

    Country Information

43. The Tribunal has regard for country information that indicates that document fraud is a major issue in Afghanistan and the applicant would be able to get fraudulent documents: [6]

    Document fraud is a major issue in Afghanistan. Because the process for obtaining some documents is decentralised to the provincial level, and because the documentation itself generally does not contain robust security features, the system is vulnerable to fraud. Genuine documents can be issued based on false information, with supporting forms of documentation such as school, academic, or banking records easily forged. This is particularly problematic in the case of taskiras, given they are the primary document used to obtain other forms of identification. The issuance of the new e-taskira should help in mitigating this risk (see National Identity Cards (Taskira/ Tazkira), but there is likely to be a significant time lag between the introduction of the new taskira and its widespread implementation.

    [6] DFAT Country Information Report Afghanistan 27 June 2019

    Conclusion

44. Following careful consideration of the evidence, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for one of the reasons mentioned in s.5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Afghanistan, there is a real risk that he will suffer significant harm.

1. For the reasons outlined 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). 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).

2. 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

3. 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.

   …