1830786 (Refugee)

[2024] AATA 3221

1830786 (Refugee) [2024] AATA 3221 (15 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830786

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Dr Greg Weeks

DATE:15 July 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2024 at 2:55pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – submitted police report against two drug dealers – effective state protection – aggressive enforcement of drug trafficking laws – decision under review affirmed

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

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 (delegate) on 4 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background

2. The applicant is a [age]-year-old man and is a citizen of Malaysia. He was born and grew up about [distance] from Kuala Lumpur in [Village 1], Perak. The applicant described [Village 1] as being “very small”, with only 80 families living there.

3. The applicant obtained an Electronic Travel Authority visa to enter Australia on 19 September 2017 and arrived in Sydney [in] November 2017.

4. The Tribunal has been provided with a copy of the applicant’s application for a protection visa dated 15 March 2018 (PV application).

   Procedural history

5. The applicant did not attend an interview with the delegate, who refused to grant the visa on the basis that the applicant did not fear harm for a reason in s 5J(1)(a) of the Act and did not face a real risk of suffering significant harm if returned to Malaysia.

6. The applicant appeared before the Tribunal on 8 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.

7. The applicant was not represented in relation to the review.

   Claims for protection

8. In the PV application, the applicant claimed that two people started to deal drugs in [Village 1] in 2015. The applicant complained about them to the police in June 2017. The applicant submitted a police report dated [in] June 2017 (police report) and an English translation of that document. The police report indicates that the applicant made a complaint to the [Village 1] police station which read:

   As per the name stated above the [Village 1] residents want to lodge police reports on two Indian men named [Mr A] and [Mr B] in [Village 1] have been selling marijuana drugs around [Village 1] since 2015 until now. I found many people buying from them. I was dissatisfied with this and asked the police to arrest the [Mr A] and [Mr B]. That’s all for my report.

9. The applicant claimed that the police arrested the drug dealers. However, they were released from police custody the following day and “continued to deal in drugs with impunity”. The applicant claimed that the drug dealers discovered that he had complained about them and they “harassed and tortured” him. The applicant claimed that he again complained to the police but they declined to take action because the drug dealers were politically connected. The police told the applicant that, if he continued to complain, they would arrest and detain him “on some false pretext”. The applicant claimed that, because the police had been bribed by the drug dealers, there was no use in seeking help from other law enforcement agencies.

10. The applicant claimed that he fled to his grandmother’s house in [Town 1], which is about 20km from [Village 1], but that the police and the drug dealers traced him. The applicant claimed that they harassed him and “threatened to eliminate” him. The applicant claimed that he fled Malaysia in fear for his life. The applicant claimed that he was and will be tortured and may be killed by the police or the drug hooligans.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

11. 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.

12. 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 (the refugee criterion).

13. 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).

14. 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.

15. 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

16. 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.

    Analysis, reasons and findings

17. For the following reasons, I have concluded that the decision under review should be affirmed.

18. I accept that the police report is a genuine document. I accept that the applicant complained to the police on or about [date] June 2017 that “two Indian men named [Mr A] and [Mr B]” had been selling marijuana in [Village 1] since 2015. I accept that the applicant asked the police to arrest [Mr A] and [Mr B].

19. The applicant stated during the hearing that he does not fear persecution in Malaysia for any reason other than as a consequence of having reported [Mr A] and [Mr B] to the police in 2017. I put to the applicant that he did not appear to be claiming that he would suffer persecution for the reason of his race, religion, nationality, membership of a particular social group or political opinion. He confirmed that he was not claiming that he would suffer persecution for any of those reasons but only that he fears being killed by or on behalf of [Mr A] and [Mr B]. He stated that he would have no reason to remain in Australia if it could be confirmed that [Mr A] and [Mr B] were in prison.

20. At the hearing, the applicant identified three occasions on which he suffered harm prior to leaving Malaysia.

21. First, the applicant claimed that, following [Mr A] and [Mr B]’s release from police custody, he was threatened by a third party. The applicant claimed that a man told him that he had “gone against us”, a comment which the applicant said referred to his report to the police about [Mr A] and [Mr B]. The applicant claimed that the man said words to the effect of “we’ll see how you will be alive”.

22. Secondly, the applicant gave evidence that his subsequent approach to the police was to complain about the threat described above and was made directly after that threat was delivered. It was in response to that complaint that the applicant claimed that the police threatened to “keep [him] inside” because the applicant complained “again and again”.

23. Thirdly, the applicant claimed that [Mr A] and [Mr B] arranged for the applicant to be spied on. The applicant claimed that there were people wherever he went, that he became fearful about going to work and that he believed that [Mr A] and [Mr B] were “waiting for the right time to harm” him. This was the reason that he claims to have travelled to stay with his grandmother in [Town 1].

24. The applicant did not claim in the hearing that he was tortured after making the police report, nor did he claim that the police traced him to [Town 1] or “threatened to eliminate” him. The applicant gave no evidence at the hearing which would support those claims.

25. I put to the applicant that he had not made during the hearing certain claims which he had made in his PV application. The applicant put those inconsistencies down to the fact that the man who had transcribed his claims into the PV application had mistakenly included claims that the applicant did not make. He confirmed that his evidence at the hearing was correct. I do not accept that the applicant was tortured in Malaysia after making the police report. I do not accept that the police followed him to [Town 1] or that they “threatened to eliminate” him, either in [Town 1] or in [Village 1].

26. The applicant also clarified that [Mr A] and [Mr B] had not personally followed him to [Town 1], but that he “saw spies” and elected to return to [Village 1]. The applicant gave no evidence of direct contact with any of the “spies”. I asked if the spies had threatened him and the applicant gave evidence that they had not. I do not accept the applicant’s claim that he was harassed by or on behalf of [Mr A] and [Mr B] in [Town 1]. I do not accept that any person “threatened to eliminate” him there.

27. The applicant’s claim to fear harm if he is returned to Malaysia was made only on two connected bases: that [Mr A] and [Mr B] will follow through on their threat to kill him and that the police will not protect him from that harm. The applicant claimed that the police would decline to protect him from [Mr A] and [Mr B] because they are “politically connected”.

28. I put to the applicant, and he accepted, that the Royal Malaysia Police is a professional and effective police force. Since July 2023, investigations into allegations of police misconduct have been carried out by the Independent Police Conduct Commission, replacing the Enforcement Agency Integrity Commission, which was not well-regarded by complainants.[1]

    [1] DFAT, Country Information Report: Malaysia (24 June 2024), [5.5]-[5.6].

29. I also put to the applicant that the possession, use and supply of marijuana are illegal in Malaysia. Under the Dangerous Drugs Act 1952 (DDA), authorities may detain suspected drug traffickers for up to 60 days without trial. At the conclusion of this period, a detainee is entitled to a court hearing, which may order his or her release. Under the DDA, the Minister for Home Affairs can also direct that a person be detained for a period not exceeding two years. Country information indicates that 997 individuals were detained in the first half of 2022.[2] The applicant replied that those statistics also indicate the power possessed by drug dealers, since many are clearly not detained under the DDA. However, he did not argue, nor do I accept, that drug dealing does not carry significant legal risk in Malaysia.

    [2] DFAT, Country Information Report: Malaysia (24 June 2024), [4.15].

30. I put further country information to the applicant which indicates that Malaysian police take an aggressive enforcement approach against marijuana dealers and traffickers, conducting frequent raids and operations, cooperating internationally and applying harsh punishments under Malaysia’s strict drug laws. I told the applicant that those laws specify that anyone found in possession of 200g of marijuana is presumed to be trafficking illegal drugs and could face the death sentence, while those in possession of 50g or less face imprisonment of up to 10 years.[3] The goal of this legislation appears to be deterrence of drug dealing through strict enforcement and severe penalties. Police do not only target large-scale traffickers but also smaller dealers. 

    [3] “'Now Everyone Can Smoke' as Malaysian drug dealers head online”, Malaysia Now (2 November 2022), >

    The applicant gave evidence that [Mr A] and [Mr B] did not only deal in marijuana but also a white powder that the applicant was unable to identify. The applicant had not raised the second drug in his PV application and it was not noted in the police report. Although the applicant accepted that Malaysian law includes strong penalties for the possession, use or supply of hard drugs, it is difficult to ascertain what specific provisions relate to a drug that cannot be identified. However, I accept that, if [Mr A] and [Mr B] were also dealing in this drug, that fact would not reduce the stringency of the laws described above relating to their possession, use and supply of marijuana.

31. I put to the applicant that the Malaysian government’s aggressive approach to the prevention of drug trafficking might make it hard for me to believe that the police would cover up for two village level drug dealers or abet them in their criminal activities. The applicant replied that the fact that [Mr A] and [Mr B] had not been imprisoned was sufficient to indicate the complicity of the police in their criminal enterprise. I asked the applicant why [Mr A] and [Mr B] would increase their risk of exposure to Malaysia’s strict drug laws by seeking to kill him after he had been gone from Malaysia for almost seven years. The applicant replied that [Mr A] and [Mr B] would definitely want to harm him, for three related reasons: to protect their powerful position in [Village 1]; to ensure the smooth running of their drug trafficking business there; and as an act of revenge for the applicant having “disgraced” them by reporting their activities to the police.

32. I asked the applicant why [Mr A] and [Mr B] did not take action to silence him as soon as possible if he was affecting their business. The applicant stated that they were “waiting for the right time” to kill him and speculated that they might have caused a motor vehicle accident to kill him on his way to work. I did not find the applicant’s response to my concern convincing.

33. While it does not establish whether or not the applicant faces a real chance of harm if he returns to Malaysia, it is relevant that he suffered no physical harm before leaving in 2017. The stakes for drug dealers in Malaysia are high. [Mr A] and [Mr B], the drug dealers in [Village 1], were involved in an illegal enterprise which is aggressively policed and for which the potential punishments range from imprisonment to the death penalty. The applicant gave evidence that only he would stand up against them but did not explain why they would bide their time before taking action to remove the threat posed by the applicant in those circumstances. The applicant gave evidence that [Mr A] and [Mr B] were uninterested in taking action against him short of murder but did not explain why having the applicant beaten or threatening his family as a means of exerting pressure on him would not have been acceptable alternatives containing fewer risks. The applicant did not claim, nor do I accept, that [Mr A] and [Mr B] took either of those alternatives or would do so in the future.

34. On the evidence before the Tribunal, I do not accept that [Mr A] and [Mr B] had political connections which allowed them to break the law “with impunity”. The applicant appears to have concluded that [Mr A] and [Mr B] were either politically protected or otherwise “connected” to the police simply because his second complaint to the police was not acted upon. The applicant gave no other evidence which supported that conclusion. He gave no evidence that the police threatened to arrest and detain him “on some false pretext”.

35. Given the evidence considered above of Malaysia’s strong laws against drug trafficking and the generally aggressive enforcement of those laws, I do not accept that [Mr A] and [Mr B] could have conducted a drug trafficking enterprise between 2015 and 2017 without arrest. I do not accept that they could still be operating that enterprise in 2024. On the evidence before the Tribunal, I do not accept that the police in [Village 1] were connected to [Mr A] or [Mr B]. I do not accept that the police threatened to arrest or detain the applicant for any corrupt or unlawful purpose. Even if I accepted that [Mr A] and [Mr B] were connected to the police of [Village 1] (which I do not), I do not accept that the applicant could not report their conduct and any threat to his safety to law enforcement officials outside the village or that those officials would be unable to help the applicant, given the strict laws against drug dealing.

36. While I have accepted that the applicant made a police report about “two Indian men named [Mr A] and [Mr B]”, I do not accept that those men or anyone else threatened the applicant or caused him to be threatened. I do not accept that they caused people to spy on the applicant. I do not accept that they will kill the applicant, torture him or otherwise harm him if he returns to Malaysia.

37. For the reasons given above, I do not accept that there is a real chance that the applicant will suffer serious harm in the reasonably foreseeable future if he is returned to Malaysia. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

38. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).

39. The ‘real risk’ element of the complementary protection criterion has been held by a Full Court of the Federal Court of Australia to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[5] For the same reasons that I have found that there is not a real chance that the applicant will suffer serious harm on his return to Malaysia, I do not accept that there is a real risk that he will suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia.

    [4] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, 551 [246] (Lander and Gordon JJ).

    [5] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp170-1 at [1169], [1180].

1. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Dr Greg Weeks
   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.

   …