1813655 (Refugee)

[2024] AATA 1277

1813655 (Refugee) [2024] AATA 1277 (16 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1813655

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Garry Fitzgerald SC

DATE:16 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 16 February 2024 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual man – application prepared by third person without applicant’s knowledge and claim emphatically disavowed – no attempt to correct or withdraw application – work opportunities – candid and credible evidence – wife’s separate protection visa application – country information – decision under review affirmed

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

CASES
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Malaysia.  He applied for the visa on 20 January 2018.  On 10 May 2018, the delegate refused to grant him the visa, deciding that he did not satisfy s 36(2) of the Act.[1]

   [1]The applicant gave the Tribunal for the purpose of the review a copy of the Department’s refusal decision record.  

3. The applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages.

4. There is a separate related case before the Tribunal: namely, that of his wife, who was refused a protection visa by the Department.[2]   Her hearing was conducted by the same member on the same day as this matter.  His wife is referred to further below.   

   [2][His wife] is also an applicant to the Tribunal for a separate review of her protection visa refusal: Tribunal case 1813033; Departmental [Reference]. 

   CRITERIA FOR A PROTECTION VISA

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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.

   Refugee

6. 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.

7. 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).

8. Under s 5J(1), a person has a well-founded fear of persecution:

   a.if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;

   b.if there is a real chance the person would be persecuted for one or more of those reasons; and

   c.the real chance of persecution relates to all areas of the relevant country.

9. 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.

   Complementary protection

10. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    MANDATORY CONSIDERATIONS

11. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), 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. The most recent report from DFAT on Malaysia is dated 29 June 2021 (DFAT June 2021).

    OTHER MATERIAL BEFORE THE TRIBUNAL FOR THE REVIEW

12. The Tribunal has also had regard to the documents contained in the applicant’s Department file [Reference], as provided to the Tribunal by the Department) and contained in the applicant’s Tribunal file. The applicant was not invited for an interview by the Department. The Tribunal has also considered the oral evidence and arguments presented at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

13. The issues in this review are whether there:

    a.is a real chance that, if the applicant returns to Malaysia, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a), under s 36(2)(a) of the Act; and, if not

    b.are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm, under s 36(2)(aa) of the Act.

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

    Nationality, country of reference and receiving country

15. The applicant’s nationality is not in issue. The Department was satisfied as to the identity documents which he produced. The Tribunal accepts that the applicant is a Malaysian citizen. Accordingly, Malaysia is the country of reference and receiving country for his application for a protection visa.

    The applicant’s personal background

16. Based on his application for a protection visa to the Department, Departmental records and his oral evidence at the hearing, the Tribunal accepts that the applicant:

    a.is in his early [age range];

    b.was born and grew up in Selangor in Malaysia;

    c.is of Malay ethnicity;

    d.is a Sunni Muslim;

    e.has family still living in Klang in Selangor — his father, mother and [brothers];

    f.is in regular and frequent contact with his family in Malaysia;

    g.completed vocational training in Malaysia before arriving in Australia, obtaining a diploma in [Subject];

    h.travelled to [Country] in 2015 and 2016, doing temporary working holidays while there;

    i.worked as a storekeeper in Malaysia for over 18 months before arriving in Australia;

    j.has lived and worked in [City], Sydney and Melbourne since arriving in Australia;

    k.has worked for about three to four years at a factory in [Suburb] as [an occupation];

    l.arrived in Australia in November 2017;

    m.met his wife in Australia shortly after arriving here;

    n.married his wife [in] 2018;[3]

    o.returned to Malaysia for about a week in June 2019 to attend religious ceremonies for his father-in-law who had died; 

    p.had a [Child] with his wife on [Date];[4] and

    q.lives with his wife and [Child] in a suburb of Melbourne.

    [3]The applicant has not produced a copy of marriage certificate but gave oral evidence about the marriage, as did his wife. 

    [4]The applicant has not produced a copy of birth certificate but gave oral evidence about the child, as did his wife.  The applicant’s oral evidence was that the birth year was [Year] or [Year]; but his wife said [Year].  

    The applicant’s claims for protection

17. The applicant lodged an electronic application for a protection visa with the Department on 20 January 2018 (the Departmental application).  He said this was completed for him by someone whom he paid. 

18. In the Departmental application, protection is claimed for the applicant because of his sexual orientation: namely, that he a ‘gay male in an Islamic country … [who is] always harassed’ and he will be prosecuted.[5]

    [5]Departmental application, at pages 18 and 19.     

19. At the hearing, the applicant said that the man whom he paid wrote this.  He said he did not tell him to write it.  He thought he was applying for a working visa, like he had done in [Country].  He said that he was ‘shocked’ when he became aware that his application sought protection on the grounds that he was a homosexual.  The applicant emphatically disavowed and denied at the hearing any claims for protection because of his sexuality made in his Departmental application.[6]  He said these claims and statements were not true and the events mentioned had never happened to him: he has never been a ‘gay man’. 

    [6]Namely, the claims made in the Departmental application at pages 18 to 19.

20. The applicant was asked at the hearing why he had not corrected or withdrawn the claims and his protection application, when he realised the claims as made were not genuine.  He said that a lot of things kept happening to hinder this: his marriage, his work, the COVID pandemic, the birth of his child, the death of his father-in-law, and having to borrow money (since repaid). 

21. The applicant’s claims which he outlined and maintained at the hearing were as follows.  He came to Australia in November 2017 to work and make money, to help support his family in Malaysia.  He regularly sends to his mother about 300 Malaysian ringgit (MYR) and on her birthday MYR1,000.[7]  He does not fear any harm if he returns to Malaysia now, but he preferred to live and work in Australia and visit Malaysia.  He said he could not earn the same money in Malaysia as here, and the working life there was too hard.  He also felt comfortable and happy in Australia and was used to life here.  Moreover, with his wife and child in Australia, he felt ‘committed’ here; if single, he could return.  At the end of the hearing the applicant said he accepted he ‘is not a refugee’.

    [7]About AUD100 and AUD335 respectively. The exchange rate AUD1 = MYR2.98 (Get foreign cash), Commonwealth Bank of Australia, accessed on 7 February 2024 at >

    The Tribunal’s own review of the material before it does not suggest or disclose any other claim or ground clearly or reasonably open to the applicant for seeking a protection visa.

    FINDINGS AS TO THE CLAIMS

22. The Tribunal found the applicant to be a credible and candid witness at the hearing.  It accepts his evidence as to his presently maintained claims as being truthful, either as to the facts expressed or the sincerity of his beliefs about them.  It also accepts for the purposes of this review the evidence as to his personal background but notes that it has not been provided with the relevant marriage or birth certificates.

    REASONS FOR THE TRIBUNAL’S DECISION

    Assessment of refugee criterion

23. To be eligible for the grant of a protection visa as a refugee, it must be established that the applicant has a well-founded fear of persecution in Malaysia. This requires, among other things, establishing that there is a real chance he would be persecuted, if he returned there, because of his race, religion, nationality, membership of a particular social group or political opinion.  A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, even if it is below 50 per cent: Chan v MIEA (1989) 169 CLR 379. The persecution must involve serious harm to the person: s 5J(4)(b).

24. In this case, the applicant left Malaysia in search of better economic opportunities in Australia and to assist his family back in Malaysia.  He wishes to remain here for the same reasons, and also to better support his wife and child.  From the applicant’s point of view, these are understandable reasons to wish to remain in Australia. 

25. However, the Tribunal must assess whether he meets the refugee criterion.  To do so, it must be satisfied that he has a well-founded fear of persecution in Malaysia.  This requires, among other things, that there is a real chance that if he returned to Malaysia, he would be persecuted for one of the refugee reasons (required by s 5J(1)(a)), with such persecution involving serious harm (which is illustrated in s 5J(5)). 

26. Based on his claims and its findings above, the Tribunal is not persuaded that the applicant fears being persecuted for any of the refugee reasons required by s 5J(1)(a).  The applicant acknowledged this in substance at the conclusion of the hearing.  He did not leave Malaysia to flee any persecution, nor does he fear returning there because of any persecution; rather he sought and seeks a better life economically in Australia.  The Tribunal is satisfied that there is no claimed persecution by others, either when the applicant left Malaysia or in the reasonably foreseeable future if he were to return.

27. The Tribunal accepts that the applicant believes he will be unable in the foreseeable future if he does return to Malaysia to provide the same level of financial support to his family there and his wife and child, as he has while in Australia.  However, in the Tribunal’s assessment, these concerns would not constitute the serious harm required for refugee protection.  Section 5J(5) of the Act sets out non-limiting instances of serious harm. These instances point to a substantial injury or threat to the life, liberty, person, dignity or sustenance of the applicant (not to others) and to a high degree. The harms must be serious in nature and degree.  Any difficulties the applicant might face in future in Malaysia in providing the same level of financial support to his family there and his wife and child, compared to if he remains in Australia, do not, in the Tribunal’s view, come within the scope of such serious harm. 

28. The most apposite instances of serious harm referred to in s 5J(5) are those set out in s 5J(5)(d)–(f). Those instances require ‘significant economic hardship’, ‘denial of access to basic services’ or ‘denial of capacity to earn a livelihood of any kind’ which threaten the applicant’s capacity to subsist in Malaysia.  Based on the material before the Tribunal, there is no reason to conclude the applicant would be unable to so subsist in Malaysia in the foreseeable future.  The country information for Malaysia suggests he could subsist in that country, based on Malaysia’s adequate and improving overall economic[8] and employment[9] situation, as well as his own personal attributes (his work history and experience in Australia and elsewhere, his vocational qualifications in Malaysia, his age, the support of his wife’s family in Malaysia and his membership of the dominant and favoured Malay ethnic group).[10]

    [8]The economic overview of Malaysia, according to DFAT country information, is that it is an upper middle-income, export-oriented economy, with a real GDP growth of 4.3 per cent and per capita GDP of USD11,418 in 2019: par. 2.9.  The World Bank reported annual GDP growth of 8.7 per cent and per capita GDP of USD11,993 in 2022: World Bank: accessed on 7 February 2024.           

    [9]The Malaysian Department of Statistics reported a labour force participation rate of 68.5 per cent and an overall unemployment rate of 4.8 per cent in February 2021. In November 2018, media reported the average unemployment rate for ethnic Malays (Bumiputera) was 4 per cent. In 2022, the unemployment rate dropped to 3.7 per cent: accessed on 7 February 2024.          

    [10]According to the DFAT country information: pars 3.2–3.3, 3.23, 3.38; see also DHA ‘Common Claims Malaysia’, COISS, 14 September 2023, pp 1–3.      

29. The Tribunal does not accept that there is a real chance he will suffer serious harm for a refugee reason in the foreseeable future if he returns to Malaysia. 

30. The Tribunal therefore concludes that:

    a.the applicant does not fear persecution for any of the refugee reasons required by s 5J(1)(a) if he returns to Malaysia; and

    b.there is not a real chance that, if the applicant returned to Malaysia, he would suffer serious harm and be so persecuted as required by ss 5J(1)(a), 5J(1)(b) and s 5J(4)(b).

    Conclusion on refugee criterion

31. For the reasons given above, the Tribunal is not satisfied that the applicant:

    a.is a refugee within the meaning of s 5H;

    b.has a well-founded fear of persecution within the meaning of s 5J(1); and

    c.is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Assessment of complementary protection criterion

32. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal must consider the alternative criterion in s 36(2)(aa): namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Malaysia, there is a real risk he would suffer significant harm, as exhaustively defined in s 36(2A) of the Act.

33. 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[11] (which applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J).

    [11]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick & Jagot JJ, 20 March 2013) per Lander & Gordon JJ at [246], Besanko & Jagot JJ at [297], Flick J at [342].

34. Based on matters considered above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm.

35. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Assessment of family member

36. As noted above, the applicant’s wife has a separate review of a protection visa refusal.  The Tribunal has also affirmed on the same day the Department’s refusal of her protection visa application.  Accordingly, ss 36(2)(a) or (aa) are not engaged by reason of his wife being entitled to protection.  There is no other basis for suggesting 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 any of the criteria in s 36(2).  

    Protection in another country

37. There is no evidence before the Tribunal to indicate that the applicant has any right to enter and reside in any other country, apart from his country of nationality, Malaysia.  Accordingly, s 36(3) of the Act does not apply in this case.

    Conclusion

1. For the above reasons, the Tribunal is not satisfied that Australia has protection obligations in respect of the applicant pursuant to s 36(2) of the Act. Accordingly, the Tribunal has concluded that the decision under review should be affirmed.

   DECISION

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

   Garry Fitzgerald SC
   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.

   …