1809656 (Refugee)

[2021] AATA 5006

1809656 (Refugee) [2021] AATA 5006 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809656

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Nicole Burns

DATE:15 November 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 November 2021 at 4:55pm

CATCHWORDS

REFUGEE – Protection visa – Malaysia – reliant on husband’s claims – husband’s participation in Bersih 4 protest – attacked – credibility issues – decision under review affirmed

LEGISLATION

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

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 13 March 2018 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 Malaysia, applied for the visa on 21 October 2017.

3. The applicant appeared before the Tribunal to give evidence about the issues in her case via video link on 12 October 2021.  The applicant’s husband[also] gave evidence.  The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The applicant is [an age]-year-old married woman from Sabah, Malaysia who came to Australia [in] April 2017 with her husband, as the holder of a UD-601 Electronic Travel Authority visa. 

11. Initially she presented her claims for protection in her visa application, claiming in summary to have left Malaysia because:

    ·She participated in political issues which made her a ‘wanted person’ by non-government organisations.

    ·Her word and act on government wrongdoing made the government supporters target her as a traitor and blackmailed her to end her life.

    ·She attended a non-profit parade against the government where she was punched in the face and body. 

    ·She already got numerous blackmail by government supporters via direct confrontation at her house and workplace. 

    ·She went to the authorities and they see her report with ‘half hearted’ [sic].  Government supporters have people in the authorities and they are all linked.

12. 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 her being removed from Australia to her receiving country of Malaysia, there is a real risk that she will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

13. The applicant travelled to Australia on a valid Malaysian passport and states that she is a national of Malaysia. The delegate did not indicate any concerns about the applicant’s identity or nationality.  Therefore the Tribunal has assessed the applicant’s claims against Malaysia as her country of nationality and receiving country.

14. At the Tribunal hearing the applicant advised that the claims set out in her protection visa application form relate to her husband, not her.  She said he wrote her application, which she signed but did not read.  The Tribunal read out her claims in the application form and asked if any of the claims were true: she said all of the incidents were true, but they all happened to her husband, and she was with him.  When asked if she was with him when he was punched in the face at a non-profit parade (as indicated in the application form), she said ‘no’ but said she supported his involvement with the movement.   She was unable to answer why he completed the application form as if she was the subject, not him, saying only that he makes the decisions.  When the Tribunal asked the applicant’s husband why he did not state the claims related to him in wife’s protection visa application when he completed it, he said his English was not that good and he thought he could explain matters at hearing.

15. The applicant said she came to Australia with her husband in early April 2017 from [Town 1], Sabah where they were living.  They both applied for protection separately, and sought review separately as they were not aware at the time they could apply for protection together.  The applicant confirmed that her fears on return to Malaysia relate to what happened to her husband, summarised below.

16. The applicant told the Tribunal before she came to Australia in April 2017 she was working part time [in] Kota Kinabalu, the capital of Sabah.  Her husband – who she married [in] February 2017 – worked [there].  They lived together in Kota Kinabalu after marriage and then moved back to their home area – [Town 1] – for about a month and a half before coming to Australia.  Presently her mother and [brothers] live in [Town 1].  She has a sister who is married and lives in Kota Kinabalu.

17. The applicant said she left Malaysia because of problems her husband faced because he followed a ‘political group’: she did not know the name of the group or any details about the group.  Later in the hearing she said it was because he supported a non-government organisation (NGO) called Bersih but was unable to provide any details about his role with the group or his activities.  Nor was she able to explain what Bersih was apart from a general statement that Bersih does something like defending against: she did not know what they purported to defend against, or why.  When asked if her husband was involved with a political group as initially said at hearing, or Bersih (which is an NGO) or both, the applicant said he has been active with Bersih but he does not speak to her about it.  

18. The applicant said sometime before they were married her husband was approached and beaten by five men when they were walking home from work together in Kota Kinabalu.  Her husband told her to run away, which she did, fleeing to the room he rented.  When he arrived at the room he was bleeding from his arm.  They went to the police station together but the police did not take the case seriously.  They then went to hospital where her husband had stitches on his arm. 

19. When asked if her husband recognised the people who attacked him and if they said anything to him, the applicant replied that she was not sure. 

20. When asked if she is aware if these five men or anyone else has been looking for her husband since they left Malaysia, the applicant replied ‘yes’.  When asked how she knows, the applicant said she does not know how to answer that.  When asked who her husband fears in Malaysia and why, she said he fears the current government and their supporters but does not know why. 

21. The applicant’s husband also gave oral evidence to the Tribunal.  He said before he was married, and whilst living and working in Kuala Lumpur, he attended a Bersih rally in Kuala Lumpur, called Bersih 4.0 on 28 and 29 August 2016.  He was introduced by a member of the group but could not recall their name or the circumstances apart from saying he met them whilst they were campaigning. 

22. The visa applicant’s husband said the main motive of Bersih is not to go against the government, but to bring about economic changes and ‘clean’ the system. He saw benefit of what they were traying to do, to change Malaysia.  When asked the main purpose of the Bersih 4.0 rally, the applicant’s husband said it was for clean government and justice.  He was asked who the justice was for and what kind of justice: he replied for the people to choose their government.  He did not know when Bersih was founded or who by, noting he only joined of the Bersih 4.0 rally. 

23. The applicant’s husband told the Tribunal that Bersih supporters are treated harshly by government supporters who attack and threaten them, and that is what happened to him when he was attacked by five men in Kota Kinabalu sometime in 2016 (the same incident the applicant had described in her oral evidence to the Tribunal).  The men accused him of being a Bersih supporter then attacked him. 

24. He also claimed to have been threatened by government supporters after he attended the Bersih 4.0 rally before he left Kuala Lumpur (where he was living and working) and returned to Sabah (around a month after the rally), when he went out of the house or would go to work, noting he was identifiable because he wore a Bersih t-shirt.  However when asked he was unable to say when he was first threatened or provide any details about the nature of the threats, for example.  When prompted he said sometime after the rally when he was coming home after work two men threatened to beat him up and kill him.  He said he suspected they had a knife. 

25. The applicant’s husband said he continued to stay in Kota Kinabalu after he was attacked in 2016.  He got married in February 2017 then he and the applicant went to their hometown, [Town 1], until they came to Australia.  He replied ‘yes’ when the Tribunal asked if he was threatened or experienced any problems following the incident in Kota Kinabalu in 2016.  However when asked to provide details he clarified that there were no further problems after that incident. 

26. The applicant’s husband said he has not been politically active in Australia. 

27. When asked if he was politically active in Malaysia prior to participating in the Bersih 4.0 rally, the applicant’s husband said he used to help the Barisan National (BN) party try and garner votes during election campaigns in [Town 1]. He could not remember which elections, or the last time he did so.  He did not experience any problems as a result.  The Tribunal found his oral evidence very vague and he had not raised this claim at the visa application stage.  Accordingly the Tribunal does not accept he used to be a BN supporter in the past in Malaysia, including by trying to drum up votes in the lead up to elections.  Given this, and his lack of political activity in Australia, the Tribunal is not satisfied he will be politically active in support of BN or any other political party on return to Malaysia. 

28. Accordingly the Tribunal finds the applicant’s husband does not face a well-founded fear of persecution on return to Malaysia because of past support to the BN from those who oppose the BN or anyone else, or due to future support to the BN or any other political group.  It follows that the Tribunal does not accept that the applicant faces a well-founded fear of persecution as a member of his family on this basis on return to Malaysia.

29. The Tribunal accepts the applicant is married and comes from Sabah.  Based on her oral evidence at hearing it accepts she has no claims of her own and relies on her husband’s protection claims.  However it has several concerns with her claims that her husband faced problems in Malaysia in the past because of his participation at the Bersih 4.0 rally as follows:

    a.Her application form is clearly written as if she was involved in anti-government activities and experienced problems as a result, not her husband.  Even if the Tribunal were to accept her explanation that the incidents (and profile) in the application refers to her husband’s experiences, not hers, there are significant omissions and inconsistencies between what is written in the application form and the applicant and her husband’s oral evidence at hearing.  For instance in the application form there is no mention of Bersih at all, or the alleged attack on her husband by five men in Kota Kinabalu in 2016: instead there is mention of being punched and kicked in the face and body whilst attending a non-profit parade against the government.  Yet neither the applicant nor her husband indicated that her husband was assaulted at any non-profit parade against the government, including at the Bersih 4.0 rally he alleges to have attended in August 2016. 

    b.The applicant’s oral evidence about her husband’s alleged involvement with Bersih and related problems was very vague, lacking details and changed over the course of the hearing in some respects.  For instance initially she said she left Malaysia because her husband was involved in a political group, and later said he was involved with Bersih, an NGO.  However she was unable to provide any knowledge of the group such as its purpose or activities or describe her husband’s involvement with the group.  Further, when she initially described the incident when her husband was purportedly attacked by five men in Kota Kinabalu she did not mention Bersih at all.  Only later – after her husband gave evidence - she said he was attacked because of Bersih and the men were government supporters but she was unable to say how she knew that.  She said her husband does not tell her anything about his involvement with Bersih, which her husband confirmed at hearing.  The Tribunal is not persuaded by this explanation as it finds it implausible he would not tell her anything about his claims, including after they left Malaysia, given she is relying on his claims for her own protection application (and review). 

    c.The applicant and her husband left Malaysia on their own passports and did not experience any problems.  This indicates to the Tribunal that the applicant’s husband was not of any adverse interest to the authorities when they left Malaysia for any reason, including his purported involvement with Bersih.

30. The Tribunal also found the applicant’s husband’s oral evidence at hearing about these matters lacked credibility.  For example his knowledge of Bersih and Bersih 4.0 in particular (such as its purpose) was very limited and general.  Further, his oral evidence about threats he purportedly received as a result of participating in the Bersih 4.0 rally was vague and evasive, as noted earlier.  Given these concerns the Tribunal gives his oral evidence about being involved with Bersih, and alleged problems as a result, no weight.

31. For these reasons the Tribunal does not accept the claims put forward by the applicant (and her husband) that her husband was active with Bersih in the past in Malaysia and experienced threats and attacks from government supporters as a result.  Specifically it does not accept the applicant’s husband had anything to do with Bersih in Malaysia, or that he attended the Bersih 4.0 rally in Kuala Lumpur in August 2016 as claimed.  It does not accept he was threatened thereafter in Kuala Lumpur or beaten by five government supporters sometime in 2016 in Kota Kinabalu after he had moved there.   As the Tribunal does not accept he was involved in Bersih in the past, and has not been politically active in Australia, the Tribunal finds he will not be involved with Bersih or any similar NGO on return to Malaysia in the foreseeable future.  The Tribunal finds the applicant’s husband does not face a real chance of persecution from the authorities (or their supporters) on return to Malaysia as a supporter of Bersih. 

32. It follows that the Tribunal finds the applicant does not face a well-founded fear of persecution on return to Malaysia on the basis of being a member of a particular social group of her husband’s family and/or on imputed (anti-government) political opinion grounds (based on her relationship with her husband).  Her fears of persecution on these grounds is not well founded.

33. For the reasons above, the Tribunal is not satisfied the applicant has a well-founded fear of persecution as required by s.5J of the Act and therefore finds the applicant is not a refugee within the meaning of s.5H.

    Complementary protection

34. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm.  In this case, the Tribunal has found that the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the ‘receiving country’ for the purposes of s.5(1).

35. For the reasons set out above, the Tribunal has found there is not a real chance the applicant will suffer serious harm from the authorities or anyone else in relation to her husband on the basis of his claimed involvement with Bersih, or for any other reason, if she returns to Malaysia, now or in the reasonably foreseeable future.  In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1]  The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s.5J.  It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for any of these reasons. 

    [1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].

1. The Tribunal is therefore not satisfied that the applicant meets the alternative provisions in s.36(2)(aa).

   CONCLUSION

2. 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).

3. 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).

4. As noted the applicant’s husband has applied for protection, separately.  He told the Tribunal his protection visa was refused, and he sought review of that decision with the Tribunal (differently constituted), which is pending.  As such, at the time of this decision, the Tribunal is not satisfied that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

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

   Nicole Burns
   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.

   …