1728450 (Refugee)

1728450 (Refugee) [2023] AATA 4656 (20 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728450
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Carolyn Wilson
DATE:20 December 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 20 December 2023 at 9:18am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victims of loan sharks – mixed religious relationship – threats from criminal gangs – fear of physical assault – forced prostitution – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 2 October 2017. The delegate refused to grant the visa on the basis that if the applicant was being threatened by illegal money lenders she could obtain state protection in Malaysia.
The applicant appeared before the Tribunal on 5 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from her partner [Partner A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 applicant claims to be a Malaysian national from Sabah, and provided a copy of her Malaysian passport to the Department as evidence of this. I accept the applicant is a Malaysian national and find Malaysia is her receiving country.
The applicant came to Australia in August 2017. IShe was born and lived in [Town 1], Sabah, in a Christian family. She went to university in Sarawak and then worked in Kota Kinabalu for [number] years before coming to Australia. She has [specified family members]. One brother lives in Kota Kinabalu, [other siblings] live in Kuala Lumpur, and the other siblings are in [Town 1].
In her Protection visa application the applicant claimed to have amassed a lot of debt in Malaysia due to her gambling addiction. She borrowed from family, friends, and illegal money lenders, and the illegal money lenders were pressuring her to pay them back. She fears the illegal money lenders may hit or harm her, or even force her into prostitution. If she is returned to Malaysia she may suicide due to the debt pressure.
In June 2023 the applicant provided updated claims to the Tribunal. She continued to claim that she was a gambling addict who borrowed huge amounts of money. She claimed the illegal money lenders are trying to recover the loan from her family and are threatening to kidnap her or sell her as a prostitute. She came to Australia to cover her debts in Malaysia. She also made new claims that since being in Australia she has met a [Country 1] man and has been in a relationship with him since October 2018. Her Christian family oppose the relationship because he is a Shia Muslim. She got pregnant at the end of 2018 and her family pressured her to have an abortion. She is interested in converting to Shia Islam and posted a picture of herself on [social media] wearing a hijab. Her father and brother threatened to kill her. If she goes back to Malaysia she will be harmed for following Shia Islam as that religion is banned in Malaysia.
At the hearing she said she was living a high lifestyle in Kota Kinabalu and borrowed a lot of money to fund her gambling addiction. She said she borrowed MYR [amount] from one illegal money lender and MYR [amount] from another. However when asked for more detail about when she borrowed this money the applicant said she couldn’t remember. When asked how she managed in Australia as a gambling addict she said she decided to stop gambling when she came to Australia because she wasn’t earning a very good income. I asked how she could just stop if she was an addict and queried whether she was exaggerating when she called herself a gambling addict, but she said she was indeed addicted to gambling. She said she was able to stop gambling after meeting [Partner A] as he gave her support. She claims to have paid some money to the money lenders from Australia. When asked if she had any financial documents to show her loans or expenditure or repayments she said she didn’t have any as she left Malaysia in a rush. She’s worried the money lenders are still looking for her. Although she said they were threatening her family she confirmed no one in her family has been harmed.
I discussed with the applicant country information that indicated the Malaysian police respond to threats and harassment from unlicensed money lenders. The police have considerable investigative powers and can visit, enter, inspect or search premises without a warrant, and seize property and business documents to assist in investigations against alleged illegal money lenders. Some non-government associations offer assistance to people in debt to illegal money lenders, and formal credit agencies are able to consolidate debts to illegal money lenders and provide payment plans.[1] The applicant said she couldn’t get help from the police in Malaysia because they are on the money lenders’ payroll.
[1] DFAT, Country Information Report Malaysia, 29 June 2021.
As raised with the applicant at the hearing, I am concerned by the lack of detail and evidence to support her claims to have borrowed MYR [combined amount] to fund a gambling addiction. Whilst she was able to give details of the amounts she claimed to have borrowed she could not give any more detail about when she borrowed, how much was paid back, or how much was outstanding. She also had no bank records to support the claim. Whilst it may be plausible that the loans were not in writing and she did not bring financial documents with her to Australia, this does not explain why she could not access some banking information online to show her financial position or problems in Malaysia, or at least provide evidence of paying money from Australia. I also do not accept her premise for why she said she had to borrow money, that is, that she was addicted to gambling. She sought no treatment in Australia but says she stopped because her income here was low and because her partner supported her through it. I do not accept this explanation. I do not accept she could have simply chosen to stop gambling on arrival in Australia if she was so addicted that in Malaysia she was putting her safety at risk by borrowing more from illegal money lenders. I further note she did not meet her partner for more than a year after arriving in Australia, so his support does not explain how she stopped gambling. I note also she claimed the money lenders were harassing her family for the money, but there is no claim or evidence any of her family have paid the loan or suffered harm from the money lenders. This suggests there was no outstanding loan. Having regard to the lack of any supporting evidence, the lack of detail, the lack of harm to the applicant or her family from the allegedly threatening money lenders, and the unpersuasive claim that she was a gambling addict who could simply stop gambling, I am not satisfied the applicant borrowed money in Malaysia from illegal money lenders because she was a gambling addict, or for any other reason. It follows I find she does not face a real chance of harm from illegal money lenders if she returns to Malaysia
The applicant claims to have been in a relationship with [Partner A], a [Country 1] Shia Muslim, since 2018. She claims to fear returning to Malaysia because her family disapprove of the relationship and because she may be targeted for following Shia Islam.
Prior to the hearing the applicant provided minimal evidence in support of being in a relationship with [Partner A]. She provided one photograph of them and two copies of residential tenancy agreements that showed her and [Partner A] were co-tenants from July 2022. At the hearing the applicant said she and [Partner A] met in September 2018 when they worked together. They entered into a temporary Muslim marriage in October 2018, where they made verbal vows to each other, and she considers [Partner A] has been her husband since that time. They did separate briefly in 2019, because she terminated her pregnancy, but they got back together when she was receiving treatment for [a medical condition]. She said they have considered applying for a Partner visa for her, but [Partner A] has only just received his Permanent Resident status in Australia. They don’t have a joint bank account but share their expenses. When [Partner A] gave evidence he said he considered their relationship to be that of boyfriend and girlfriend, but he also confirmed they entered into a Muslim temporary marriage which according to his beliefs was necessary for them to have a physical relationship. He said they have lived together for 2 years.
Following the hearing the applicant provided more evidence of her relationship with [Partner A], including more photographs of the two of them, statements from friends and others who know them and say they recognise them as a couple, evidence of joint car insurance, and evidence of travel together. They also provided a statement from both of them providing some detail about their relationship and their plan to marry in the future. Based on this evidence I accept the applicant is in a relationship with [Partner A].
The applicant claimed to fear harm from her family because of her relationship with a [Country 1] Shia Muslim. She says her family do not accept the relationship and do not accept her being Muslim. The applicant confirmed she has not actually converted to Islam, but says she will. She says her family were upset by a photograph she put on [social media] with her wearing a hijab. The applicant was not wearing a hijab at the hearing. Of all the photographs she provided to the Tribunal, showing her and [Partner A] in various places from 2018 to 2023, she was wearing a hijab on only one occasion in 2022. I do not accept she would wear a hijab on return to Sabah in Malaysia when she does not wear it now.
The applicant said in a written statement that her father and older brother threatened to kill her, but it is not clear from her statement if that is because of her relationship with [Partner A] or in the event that she converts to Shia Islam. At the hearing she said they made the threats after they saw the photo on [social media] of her wearing a hijab. She says her family are a highly regarded Christian family in their village and she has disgraced them. She did not provide any evidence of any written threats from her father or brother or anyone else. [Partner A] said most of the family don’t talk to her anymore, but she is in contact with one sister and brother. He also said one of the applicant’s cousins told him the father was not accepting of their relationship and the cousin said she would be better staying in Australia. I asked the applicant if her father or brother saying he will kill her may have been something said in the heat of the moment, or hyperbole, with no real intent to actually kill her. She said her father was very strict, controlling, and abusive when she was growing up. She also said that being rejected by her family is hurtful.
Inter-faith marriages are not uncommon in Malaysia and are reported to be on the rise. To marry a Muslim in Malaysia the non-Muslim party must convert, or the marriage will not be legally recognised under either Malaysian or Syariah law. The state of Sabah, which is very ethnically diverse, reportedly has a high number of mixed marriages and consequently a high number of Muslim converts.[2] Malaysians generally are said to be more receptive to mixed marriages, but some couples have reportedly faced general disapproval, including from family and friends. The country information before me does not suggest women in inter-faith marriages in Malaysia face threats of ‘honour’ killings,[3] and no such evidence has been provided by the applicant.
[2] S. Sintan, K. Hambali, A. Baharuddin, M. Ahmad, M. R. M. Nor & Kadir, “Conversion to Islam and interfaith marriage in ‘Sabah’, Malaysia”, Ahfad Journal, 1 June 2014.
[3] A. Dorall, ‘Have interracial relationships in Malaysia become more acceptable over the years?’, The Rakyat Post (Malaysia), 16 October 2019; B. G. Penn, ‘6 Interracial couples share the struggles that they face & how they make things work’, DiscoverKL.com (Malaysia), 28 June 2017; C. Lau, ‘Interracial love - how two couples overcame race and religion’, Malaysiakini (Malaysia), 17 September 2016.
In Malaysia the applicant lived independently of her family as an adult for 10 years, when she went to university in Sarawak and when she lived and worked in Kota Kinabalu. If she returns to Malaysia I consider she will likely return to Kota Kinabalu where she chose to live and settle as an adult, not her childhood home. As she is estranged from her parents, she may not visit them in the home village. I consider it farfetched her father or other relatives would seek her out to physically harm her. If her father was strict and controlling when she was a child, he did not control her life in Kota Kinabalu. I have considered her claim that her family still has some power over her, such as when she felt pressured by them in 2019 to terminate her pregnancy, although noting she was in the early stages of a relationship in a new country, these factors may also have contributed to this decision.
I accept some members of the applicant’s family may not be happy she is in a relationship with a Shia Muslim and that she has considered converting to that religion.I accept being rejected or losing contact with family is hurtful. Family disapproval in such cases does occur in Malaysia, but it is a big leap from disapproval to murder. On the evidence presented, I do not accept her father or other members of her family have made credible threats to kill the applicant on return to Malaysia. I find if such words were ever said to her they were hyperbole. I find she does not face a real chance of harm from her family for reason of her relationship in Australia with a Shia Muslim nor for expressing some interest in the religion.
I accept [Partner A] is a Shia Muslim. The applicant said she is planning to convert to Islam, but she is very busy and it takes time to convert. When asked what she has been doing to learn about the religion or prepare to convert she said she sometimes watches videos or uses google translate to translate the Koran. There was no suggestion from the parties that [Partner A] would go to Malaysia with the applicant. In circumstances where the applicant has not converted nor taken real steps towards conversion to Islam in Australia, after more than 5 years of being in a relationship with a Shia Muslim and allegedly having an interest in doing so, I do not accept she will convert to Shia Islam on return to Malaysia.
Malaysia is a Sunni Muslim majority country, and Shias form only a very small proportion of the population. DFAT reports the estimates of Shias in Malaysia vary significantly but that a prominent Malaysian academic estimates the population to be around 50,000. DFAT reports that Shia and Sunni Muslims live side by side and some intermarry. Shia Muslims can however face interference and difficulty practising their religion, and proselytising or promoting Shia Islam can result in arrest or harassment by the authorities. DFAT otherwise assesses Shia Muslims live free from societal discrimination on a day to day basis.[4] I do not accept the applicant would proselytise or promote Shia Islam, nor do I accept the applicant would even practice the religion given her engagement with it in Australia has been minimal. It is not clear why she took photographs of herself wearing a hijab on one occasion, but her presentation at the hearing and the rest of her photographs show she is not a hijab wearer. I do not accept people in Malaysia, outside of her family, would know she had been in a relationship with a Shia Muslim in Australia nor do I accept there is a real chance anyone would be interested in targeting her for this reason or for her low level interest in Islam. I find the applicant does not face a real chance of harm for having a relationship in Australia with a Shia Muslim nor for having expressed some interest in the religion.
[4] DFAT, Country Information Report Malaysia, 29 June 2021.

For these reasons I find the applicant does not face a real chance of harm for any of the reasons claims. Therefore I find the applicant does not have a well-founded fear of persecution and does not meet the requirements of the definition of refugee in s.5H(1).
I have not accepted that the applicant has an outstanding debt with illegal money lenders in Malaysia and therefore I find she does not face a real risk of significant harm from illegal money lenders. I have found the applicant does not face a real chance of harm for reason of relationship in Australia with a Shia Muslim nor for expressing some interest in the religion. ‘Real chance’ and ‘real risk’ has been found to equate to the same threshold. For the same reasons given above I am not satisfied there is a real risk of significant harm for any of the reasons claimed.
I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Carolyn Wilson
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.
…

[2023] AATA 4656

20 December 2023

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