1804722 (Refugee)

[2024] AATA 1363

1804722 (Refugee) [2024] AATA 1363 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1804722

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Jennifer Ermert

DATE:18 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 18 March 2024 at 9:56am

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – identical to the claims from another unrelated case – debt problems – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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 Home Affairs on 14 February 2018 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 Indonesia, applied for the visa on 10 February 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as the applicant did not meet any of the criteria in s 36(2).  

3. The applicant, who is self-represented, appeared before the Tribunal on 8 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. 

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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 (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether or not the applicant is a person in respect of whom Australia has protection obligations under s 36(2) of the Act because the applicant is either a refugee or a person who engages complementary protection obligation, or is a member of the same family unit as such a person who holds a protection visa of the same class.  

Identity and country of nationality

1. The applicant claims to be a citizen of Indonesia. He provided a certified copy of the biodata page of his Indonesian passport to the Department. In the absence of evidence that the identity document provided was a bogus document within the meaning of s 5(1) of the Act, the Department accepted the applicant is a national of Indonesia and has considered and assessed the applicant’s protection claims against Indonesia in relation to s 36(2)(a) and s 36(2)(aa) of the Act.

2. The Tribunal has considered the identity document on the applicant’s departmental file. The Tribunal has also had regard to the original of the applicant’s (now expired) Indonesian passport sighted at the hearing, and in respect of which a scanned copy was provided to the Tribunal. The Tribunal is satisfied that the applicant is a citizen of Indonesia in the absence of contrary evidence. The Tribunal therefore finds Indonesia is the applicant’s country of nationality for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicant, who arrived in Australia on [date] January 2017 on a Class FA Subclass 600 Visitor visa and has not departed since, is a [date] year old man from [East] Java, Indonesia. He is the youngest child in a family of 4 children, with 2 elder brothers and 1 elder sister. The applicant is married with [two children].

2. In his protection visa application, the applicant claimed:

   “I left my own country because distrust of the judiciary and low (sic) enforcement, poor system of government, burreacracy (sic) starting from the lowest lever (sic) up to the top. The distruction (sic) of the global economy impact on the nation’s economy, poverty and unemployment are still big, due to such problems, as the people of Indonesia, I has (sic) been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt. I live in mental distress and fear. Many people in Indonesia have problem like me, who borrowed money had been hit, injured and killed.

   ……I [appeal] for Minister to approve my application.”

Evidence at hearing

1. The Tribunal discussed the applicant’s work history and reasons for departing Indonesia at length.  After completing his secondary school education, the applicant established his own [business]. He did this for over 15 years before he was persuaded by a friend towards the end of 2015 to get into the business of supplying [product] to [factories].

2. The [business] involved buying [product] from [farmers] [and] supplying the [product] to the [factory] which he had a contract with. The applicant explained he needed 100 tonnes of [product] every month, of which 50 tonnes were supplied to the [factory] and the other 50 tonnes were stored in a warehouse as reserve.  On or around July 2016, [an accident happened and the applicant lost the product]. The applicant’s warehouse was also damaged and he lost his entire reserve stock of [product]. As a consequence, he was unable to maintain the required [product] supply to the [factory], leading to the contract being terminated and his business going bankrupt.

3. The applicant claimed the bankruptcy of his [product] business plunged him into debt, because he had (through his parents) borrowed IDR 200 million from the bank using the certificate from one of his parents’ farmlands as security, as well as IDR 50 million each from 3 friends to set up the [product] business, which he was now unable to repay.  To avoid losing the farmland used as security for the bank loan, his parents paid off the loan but he now owes his parents.  The applicant claimed that since coming to Australia, he has focussed on repaying his parents first and so far he has repaid half of the loan amount, with IDR 100 million left still to be repaid.

4. The Tribunal asked the applicant what happened with respect to the loans from his friends and whether he experienced any issues with his friends after his [business] went bankrupt. The applicant claimed his friends went to his parents’ house (where he also lived) once or twice every week to demand their money back, but otherwise did not cause any issues.  However, things escalated when debt collectors started to turn up instead and threatened to kill the applicant if he did not return the money to his friends. When asked if anything had actually happened, the applicant said ‘no’ there had only been verbal threats, but the threats really stressed him out, especially because they were made in front of his parents. The applicant claimed the stress was what made him decide to run away (to Australia). 

5. The applicant claimed that starting from this year, he intends to begin focusing on repaying his friends once he has fully repaid his parents.  Tribunal asked the applicant what he believed would happen if he returned to Indonesia now, to which he replied ‘there could be problems’ if the debt to his friends remain unsettled. When pressed further, the applicant said his friends would want their money back but conceded that he does not know if anything worse would happen, as his parents and wife have not experienced harm from either his friends or the debt collectors besides some initial harassment immediately following his departure.  The applicant also conceded that while the police would not intervene insofar as the debt is a matter between him and his friends, the police could probably protect him if actual physical harm was involved.  The applicant stated he does not currently have any thoughts of returning because he likes working in Australia, but he is not really scared if he had to return to Indonesia.

6. The Tribunal put to the applicant that the claims in his protection visa application appeared to have been copied and pasted because they were verbatim/ identical to the claims from another unrelated case which had been constituted to this Tribunal member.  Particularly telling was the statement imploring the approval of the protection visa application by the Minister from ‘[name]’, which is clearly not the applicant’s name. The Tribunal raised concerns that this could impugn the applicant’s credibility and cause the Tribunal to disbelieve his claims.  In response, the applicant explained that his friend helped him complete the application based on his instructions that he had debt problems at home, but he was unaware of what exactly was written in the visa application.  The applicant stated his evidence at the hearing is the true version of events that the Tribunal should give weight to instead of the protection visa application.

REASONS FOR THE TRIBUNAL’S DECISION

1. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed because the applicant does not meet any of the criteria in s 36(2) for the grant of a protection visa.

Credibility of the applicant’s evidence

1. The first step in determining whether the applicant is eligible for the grant of a protection visa is to determine the credibility of his claims. The Tribunal is aware of the importance of adopting a reasonable approach in making credibility findings. In Guo v MIEA (1996) 64 FCR 151, the Full Court of the Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary comments made by Foster J at [94]:

   “care must be taken that an over-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.”

2. The Tribunal also notes the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) states at paragraph [196] 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.”

3. 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 the applicant. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

4. 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 a finding with confidence it must proceed to assess the claim on the basis that it might possibly be true: MIMA v Rajalingam (1999) 93 FCR 220.

5. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out: Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA & Another (1994) 34 ALD 347 at [348] per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

6. The Tribunal accepts the applicant’s explanation that the claims in the protection visa application were not his, and finds that the friend who completed the application form for him had either copied and pasted the claims from other protection visa application/s or used some template wording for debt-related claims.  Accordingly, the Tribunal does not give any weight to the claims in the protection visa application and bases this review on the applicant’s oral evidence at hearing, which the Tribunal accepts in its entirety.

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), the applicant must show he has a well-founded fear of persecution in Indonesia, and owing to that fear, is unable or unwilling to avail himself of the protection of Indonesia. This requires an assessment of whether there is a real chance that the applicant would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

2. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

3. The applicant’s protection claims can be boiled down to fears of being harassed by his friends for the unsettled debt, and fears of threats of possible serious harm from debt collectors acting on behalf of his friends, the latter of which are corroborated by available information regarding loan sharks and debt collectors from the DFAT Country Information Report dated 24 July 2023:

   “Usury occurs in Indonesia, but it is mostly a hidden crime. Online lenders have grown in popularity and money can be lent from outfits based overseas. DFAT is aware of media reports of those who have borrowed money being harassed by debt collectors, which in some cases has led to suicide. Harassment can take the form of threats of violence or blackmail.”[1]

   [1] DFAT Country Information Report Indonesia, Department of Foreign Affairs and Trade, 24 July 2023, p.30, [3.116].

4. Notwithstanding this, the Tribunal notes the applicant’s evidence that nothing bad had actually happened and no serious harm had befallen him or his family in the past, despite his friends’ constant harassment and despite the debt collectors’ threats to kill which the Tribunal accepts caused stress.  On balance, the Tribunal finds that the absence of serious harm in the past suggests there is not a real chance that the applicant would be persecuted in the future if he returned to Indonesia.  In MIEA v Guo (1997) 191 CLR 559, the High Court observed at [574] and [575]:

   “Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.

   In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

5. The Tribunal finds that if the applicant returned to Indonesia and if his friends were to find out that he has returned, it is very likely that they would, whether acting alone or through debt collectors, recommence harassing the applicant until the money owed to them is repaid.  However, for the reason given above, the Tribunal does not accept there is a real chance that the applicant would be subjected to serious harm amounting to persecution in the reasonably foreseeable future.  With the risk of losing his parents’ land to the bank removed and with the debt to his parents partially paid off already, the Tribunal considers it is possible for the applicant to discuss deferring repayment of the remaining debt with his parents to enable him to prioritise his friends instead.  The applicant could find a job and start repaying his friends, even if it might take him longer than he would otherwise from working in Australia, and even if it might require him to negotiate repayment over a longer period with his friends.

6. As the Tribunal is not satisfied there is a real chance that the applicant would be seriously harmed in the reasonably foreseeable future if he returned to Indonesia, he does not have a well-founded fear of persecution and does not meet the definition of ‘refugee’.  It follows, therefore, that the applicant does not meet s 36(2)(a) of the Act.

Complementary protection assessment

1. Having determined that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) is not the end of the matter; the Tribunal must proceed to consider whether the applicant is instead a person in respect of whom Australia has protection obligations because of the complementary protection ground set out in s 36(2)(aa) of the Act.  This requires the Tribunal to assess whether there are substantial grounds for it to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant would suffer significant harm.

1. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

2. For the reasons already discussed, the Tribunal does not accept there is a real chance that the applicant would be persecuted by his friends or debt collectors acting on their behalf if he returned to Indonesia, now or in the reasonably foreseeable future.  It follows, therefore, that there are no substantial grounds for the Tribunal to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that the applicant would suffer significant harm.  

3. The Tribunal finds the applicant is not a person in respect of whom Australia has protection obligations on the basis of complementary protection under s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. Finally, there is no evidence before the Tribunal to suggest that the applicant is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by the applicant. Therefore, the Tribunal finds that the applicant does not satisfy s 36(2)(b) or (c) of the Act. 

DECISION

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

Jennifer Ermert
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…