1833014 (Refugee)

[2024] AATA 2414

1833014 (Refugee) [2024] AATA 2414 (10 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833014

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:B. Mericourt

DATE:10 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 10 May 2024 at 3:56pm

CATCHWORDS

REFUGEE – Protection Visa – Taiwan – claimed that he will be harmed by loan sharks as a consequence of failing to repay his friend’s debts – lack of detail in the applicant’s evidence – not satisfied the applicant has a well-founded fear of serious harm – credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 26 October 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Taiwan, applied for the visa on 20 December 2017. The delegate refused to grant the visa on the basis that she was not satisfied that the applicant had a well-founded fear of persecution or that there is a real chance he will be persecuted for one or more of the reasons mentioned in s5J(1) of the Act if he returns to Taiwan. Nor was the delegate satisfied that there is any real chance the applicant will suffer significant harm as defined in s36(2A) of the Act if he returns to Taiwan.

3. The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was not represented at the hearing.

   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) (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.

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). 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).

8. 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.

9. 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

10. 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.

    Receiving Country

11. The applicant claims to be a citizen of the Republic of China (Taiwan). He provided a copy of the bio data page of his Taiwanese passport to the Department. The Tribunal accepts that he is a citizen of Taiwan based on the findings made by the Department. The Tribunal finds that Taiwan is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

12. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.

    BACKGROUND

13. The applicant is a [age]-year-old single man from [Taipei], Taiwan. His mother and younger sister reside in Taiwan.

14. The applicant completed high school in [year] majoring in [a subject].

15. The applicant applied for a working holiday visa on 22 January 2016 which was granted on 5 February 2016. He entered Australia on[date] February 2016. On 28 November 2016 his working holiday visa was extended. On [date] November 2017 the applicant departed Australia, returning on [date] November 2017. He lodged an application for protection on 20 December 2017.

16. The applicant worked in a factory in Taiwan after he left school and then started to study with a friend about how to [do a specified work] in Taiwan. However, he departed Taiwan before he started working in this field. In Australia the applicant worked as [various occupations] whilst he was the holder of a working holiday visa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issues in this case are whether the applicant has a well-founded fear of persecution if he returns to Taiwan and if so, does he meet the refugee provisions of the Act? If not, does the applicant meet the protection obligations under the complementary provisions of the Act?  

18. The Tribunal has before it the Department’s file relating to the applicant including the delegate’s decision. The Tribunal also has had regard to other material available to it from a range of sources. This includes, but is not limited to the following:

    ·the applicant’s claims for protection in his application form dated 20 December 2017;

    ·the applicant’s evidence at the Tribunal hearing on 9 May 2024;

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Refugee Law Guidelines and PAM3 Refugee and Humanitarian – Complementary Protection Guidelines;

    ·Relevant country information referred to below.

    Applicant’s claims in his written application for protection to the Department

19. The applicant claims he will be harmed by loan sharks as a consequence of failing to repay his friend’s debts. The applicant’s friend made an investment in a business and the applicant was his guarantor. His friend’s business failed and all the assets were sold at a low price and he was also heavily in debt. As the applicant was his guarantor creditors made trouble with him after they failed to find his friend. They constantly sent a lot of people to his home and he was threatened and harassed. They even demanded that he signed an agreement to donate his organs which he refused. They tortured him a lot and he had to flee to Australia. He tried to seek help from the police but it was useless and they did not offer a solution to his problem. The creditors are widely connected and no matter where he hides in Taiwan he will be found. As long as the debts are not cleared his situation remains the same at his life will be in danger at any time.

    Applicant’s claims at the Tribunal hearing

20. During the hearing the Tribunal discussed with the applicant his family composition, work history, residential history and visa and migration history which are outlined under the heading Background above. The Tribunal then went on to discuss the applicant’s claims and reasons he fears returning to Taiwan.

21. The applicant said that he has not been in contact with his family members in Taiwan for quite a while.

22. Before he came to Australia on a working holiday visa, the applicant had started a [business] with a friend.  They had a shop which was a location people could come to test out the products. However, the business did not make money as people were buying elsewhere on-line. They didn’t go well trying to sell the products on-line themselves. They had to shut the shop and they were left with a lot of products. The applicant said it was his friend who had taken out the loan for the business and the shop and he was the guarantor. When the business failed they still owed money for the shop to the bank which they were unable to repay and then his friend ran away to [a country].

23. Later the bank tried to collect the debts by sending some gang members to collect the money. They were verbally aggressive and threatened the applicant. They asked the location of his friend. They said they would chop off his hand if he did not repay the debt himself. They did not physically harm him. The applicant became scared and so did his family members. Another friend suggested he come to Australia on a working holiday visa to earn some money to repay the debt and then return.

24. The Tribunal asked the applicant how long after he applied for a working holiday visa was he granted the visa. The applicant said it was very fast but he could not remember exactly. The Tribunal put to the applicant it was able to obtain this information from the Department if necessary and asked if he thought it was days, weeks or months. The applicant could not remember. The Tribunal asked the applicant if he was harmed by the gang members while he waited for the grant of the visa. He said he was not.

25. After he was granted the working holiday visa the applicant came to Australia and earned some money but it was not enough to repay the debt. He did send money to his mother while he was in Australia but he thought she used it for her own living expenses. He returned to Taiwan for two weeks (in November 2017) but as he did not have enough money to repay the debt he returned to Australia and lodged an application for protection.

26. The Tribunal asked the applicant the name of bank. He thought it was [BANK 1] bank. The Tribunal put to him that if it was a bank with an international reputation such as [BANK 1] then he would have had a contract. He said that they did. The Tribunal asked what collateral he had offered as a guarantor. He said he owned a property which had been purchased by his mother. When his friend disappeared and the applicant was unable to repay the debt the bank repossessed the property which was sold at auction. The property was sold for 2 million NTD (roughly equivalent to AUD94,000) and the loan was for 40 million NTD (roughly equivalent to AUD1.9 million) for the shop. His friend also repaid some of the loan before he fled but the applicant is not sure about this or how much he paid. He has had no contact with the friend since he left for [a country].

27. The applicant said he did not make any report to the police about gang members threatening him because he was scared.

28. The Tribunal asked the applicant if he still had the documents from the bank related to the loan. He said he did. When asked where they were he thought his mother had them in Taiwan. The Tribunal asked if he could ask his mother to send him the documents so he could provide this evidence to the Tribunal. He said no because he has no contact with his mother and she doesn’t really want to help him. The Tribunal asked what the reason was she would not help him, particularly when he had sent her money from Australia. He just said she wouldn’t help him. The Tribunal asked why he had not thought to provide those documents to either the Department or the Tribunal some years ago when he made the application for protection and for review of the Department’s decision. The applicant said he did not know what to expect or that he had to provide evidence.

29. The Tribunal put a number of concerns about the applicant’s evidence to him during the hearing. Firstly, the unlikely possibility a reputable international bank such as [BANK 1] would send gangsters to collect a debt from a guarantor, particularly if they had already repossessed and sold his only asset. Secondly, that the bank would accept a property worth a 20^th of the loan as an acceptable amount of collateral against a loan of that size. Thirdly, that the applicant’s mother would not send the documents relating to this loan to the applicant if she believed he may face harm if he returns to Taiwan, particularly after the applicant had sent her funds for her own use from Australia. The applicant had no comment in response to these concerns.

30. The Tribunal asked the applicant what he thought would happen when if he were to return to Taiwan now, 8 years after he left.  The applicant said that he thought the gang members may still come back to him and try to harm him. When the Tribunal questioned him again about why a reputable bank would send gang members after him now, he said he thought the bank would engage lawyers and come after him for the funds.

31. The Tribunal put to the applicant country information about the law in Taiwan and police effectiveness in prosecuting and jailing criminals and gang members who threaten, intimidate or cause actual harm to people when trying to collect money (see country information below). The applicant had no comment in response to this information.

32. The Tribunal asked the applicant if there were any other reasons he fears returning to Taiwan now or in the reasonably foreseeable future. The applicant said there were no other reasons he feared harm if he returned.

    Country information about loan sharks and gangs in Taiwan

33. Usury is a commonly reported crime and some usury activities are linked to organised crime. People may borrow money to support business interests. The law proscribes lending money at an ‘obviously’ inappropriate interest rate based on the  ‘urgent need, carelessness, inexperience or lack of other resort’ of the borrower[1]. Monitoring, intrusion upon, threats, intimidation and actual harm in an effort to instil fear are all criminalised[2]. Police actively target loan sharks in broad crackdowns against criminals[3]. In March 2021 police arrested eight suspected gang members accused of using violence and intimidation to collect money on behalf of creditors.[4] Police operations against loan sharks are reported in the Taiwanese media and hundreds of loan sharks have been arrested in recent years[5].

    [1] Government of Taiwan, ‘Criminal Code of the Republic of China’, as amended to 15 January 2020, article 344

    [2] Ibid, article 344-1

    [3] Taipei Times, ‘Police detained 350 in crackdown on organised crime’, 4 May 2019

    [4] Focus Taiwan, ‘8 gang members arrested for illegal collection of debts in Taipei’, 14 March 2021

    [5] Taiwan News, ‘South Taiwan business owner reports loan shark for “not taking repayment”’, 24 March 2022

34. Police actively seek out and prosecute organised criminals. The Organised Crime Prevention Act 2018 includes a broad suite of offences including being a member of, financing, recruiting for threatening a person in the name of an organised crime group.[6] in 2021, Taipei’s police Commissioner acknowledged an increase in negative public perceptions in the ability of law enforcement authorities to contain organised crime and found to intensify police efforts by conducting more frequent operations.[7]

    [6] Government of Taiwan, ‘Organised Crime Prevention Act’, 3 January 2018, articles 2,3,4,6

    [7] Taipei Times, ‘Law and Order: Taipei police Commissioner reassures public on safety’7 May 2021

    Assessment of the applicant’s claims and findings

35. The Tribunal has serious concerns about the credibility of the applicant’s evidence. Throughout the hearing the applicant was very hesitant about answering any questions about his claims for protection and provided as little detail as possible. His answers relating to why his mother could not assist him by sending relevant documentation to him were evasive and unpersuasive. The applicant was unable to address any of the concerns raised by the Tribunal at the hearing.

36. When assessing claims the Tribunal must make findings of fact based on whether the claims are credible. Credibility is to be assessed by having regard to the individual circumstances of the case and the evidence before the Tribunal.[8] Applicants may have difficulties presenting evidence due to experiences in their home countries. These experiences may lead to nervousness and anxiety in presenting evidence to government authorities. Presentation may also be impacted by cultural behaviours, mental health issues or level of education, as well as stress caused by separation from home and family. An applicant may forget dates, locations, distances, events and personal experiences due to lapse of time or other reasons.[9] The Tribunal is conscious and mindful that there may be factors that consciously or otherwise influence how evidence is presented and that it should be careful of basing findings on assumptions. The Tribunal has taken into consideration the Tribunal’s Guidelines on the Assessment of Credibility, which reinforce that the Tribunal should approach the assessment with an open mind.[10] The courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[11]

    [8] Department of Home Affairs, PAM 3: ‘Refugee Law Guidelines’, [15.3]

    [9] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, Ibid

    [11] SZLVZ v MIAC [2008] FCA 1816 at [25].

37. Nevertheless, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, and the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised or the evidence was not presented before the primary decision was made, the Tribunal must draw an inference unfavourable to the credibility of the claim or evidence.[12]

    [12] Subsection 423A of the Migration Act 1958 (Cth)

38. The Tribunal had regard to the lack of detail in the applicant’s evidence, his unwillingness or inability to provide the documentation which he asserted would support his claims in Taiwan and his evasiveness and/or lack of response when concerns about his evidence were put to him. The Tribunal is not satisfied the applicant’s claims are credible. Consequently, the Tribunal is not satisfied that there is a real risk or real chance of serious or significant harm from gang members or criminals or people sent by the bank to collect the debt if he returns to Taiwan now or in the reasonably foreseeable future.

1. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Taiwan for any refugee nexus reason.

2. Based on the above findings, the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Taiwan, that he will suffer significant harm for any reason now or in the reasonably foreseeable future.

   CONCLUSION

3. 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).

4. 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).

5. 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

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

   B. Mericourt
   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.

   …