1906000 (Refugee) v Minister for Immigration and Multicultural Affairs - [2024] ARTA 880

1906000 (REFUGEE) [2024] ARTA 880 (12 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1906000
Tribunal:General Member P Noonan
Date:12 December 2024

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 12 December 2024 at 1:40pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from loan shark – borrowed for business – vague and inconsistent claims and evidence – first applicant’s claims identical to second applicant brother’s, now returned to home country – explanation that applicants owed different debts to different lenders, and that applicants worked in Australia to pay off brother’s debt – no contact with lender before departing and no attempts to resolve debt while continuing to work in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
MIMA v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 March 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of Malaysia, applied for the visas on 26 October 2018. The delegate refused to grant the visas on the basis that they did not meet the criteria for the granting of protection visas. The applicants applied for review of this decision with the Administrative Appeals Tribunal on 13 March 2019.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The first named applicant (‘the applicant’) appeared before the Tribunal on 20 November 2024 to give evidence and present arguments. The second named applicant did not participate in the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country of nationality
The delegate was satisfied that the applicants’ country of nationality is Malaysia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to their Malaysian passports, copies of which are retained on the Department’s systems and file, and accordingly has assessed their claims with respect to Malaysia as the country of reference or receiving country for the purposes of this appeal.
Department interview and decision
The applicants were not offered an interview by the Department. They supplied the Tribunal with a copy of the delegate’s decision when they appealed it to the Tribunal.
BACKGROUND
The applicant was born in [Age]. He informed the Tribunal that he is married and has [children]. His parents and [siblings] all live in Johor, Malaysia. He also has one sister living in Australia. In Malaysia he worked as [an occupation]. He has continued doing this work in Australia. He informed the Tribunal that his brother, (who is the second named applicant in this appeal), returned to Malaysia about two years ago. His brother is back living with their parents in Johor. While working in Australia he has been remitting money back to his wife in Malaysia. He confirmed that ethnically he is Malay and his religion is Muslim.
The Tribunal accepts the above to be true.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
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.
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.
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).
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.
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
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.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary considerations – the second named applicant
After the applicant disclosed to the Tribunal that his brother had departed Australia the Tribunal checked the Departments movement records which reflected that he had indeed departed Australia [in] March 2021 and had not returned.
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia. This means that a protection visa may only be granted if the applicant is in Australia.
The Tribunal is satisfied, from the circumstances set out above, that the second named applicant is not in Australia. Therefore, the second named applicant does not satisfy the requirements of s 36(2) and cannot be granted a protection visa. As such the decision not to grant a protection visa with respect to the second named applicant must be affirmed.
Considerations – the applicant
In the written application for protection the applicant and the second named applicant have identical reasons for fearing persecution in Malaysia. They wrote (in summary) that they left Malaysia because they had a problem with a loan shark. They borrowed money from a loan shark for their business, but when they were delayed in repaying the borrowings they were threatened and attacked. They ran away because they will be made bankrupt.
The credibility of the applicant’s claim to owe a debt to an illegal money lender in Malaysia.
The Tribunal has serious concerns as to the credibility of the applicant’s claim to owe money to an illegal money lender in Malaysia.
The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well-founded’ or that it is for the reason claimed. Rather it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.
When assessing claims made by applicants the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).
However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
At the commencement of the Tribunal hearing the applicant confirmed that he still feared harm from the illegal money lender and that this is the only reason he fears harm should he be required to return to Malaysia. He confirmed that he and his brother had completed their protection application forms themselves.
For the following reasons the Tribunal finds that the applicant’s claim to owe money to an illegal money lender in Malaysia is not credible.
Firstly, the applicant has given highly inconsistent evidence about the nature of the claimed debt.
In his written application for protection the applicant and the second named applicant listed identical reasons for fearing persecution in Malaysia. They wrote (in summary) that they left Malaysia because they had a problem with a loan shark. They borrowed money from a loan shark for their business, but when they were delayed in repaying the borrowings they were threatened and attacked. They ran away because they will be made bankrupt.
The Tribunal put to the applicant that his claims were the same as his brother and the fact that he had informed the Tribunal that his brother had returned to Malaysia may lead it to conclude that he did not fear harm from the illegal money lender. The Tribunal put to the applicant that this may lead it to conclude that there is no longer any such debt owing and that he could also safely return to Malaysia.
The applicant responded that in fact the debt owed by his brother and himself were different debts and from different illegal money lenders. They had both worked in Australia to pay off his brother’s debt so that he could safely return to Malaysia. The Tribunal put to the applicant that it may find it highly implausible that he and his brother would not set out that they owed different amounts of money to different illegal money lenders if that was in fact the case. The applicant simply responded that he had not been savvy enough to do this and a friend had just advised them to lodge a joint application.
The Tribunal considers the applicant’s argument for not accurately listing his protection claims to be highly implausible. The protection application forms that he and his brother filled out clearly required them to honestly and truthfully set out their claims for protection. The Tribunal does not accept that “not being savvy enough” is an acceptable explanation for not accurately listing the basis for their claims to seek protection. The Tribunal considers the applicant’s new claim that he and his brother in fact owed separate loans to separate illegal money lenders to have been crafted to counter the clearly adverse fact that the second named applicant has chosen to return to Malaysia. This shifting and inconsistent claim causes the Tribunal to doubt the credibility of the applicant and his claim to owe money to an illegal money lender.
Secondly the applicant did not know how much he now owed and he has made no attempts to repay the claimed debt or put in place a repayment plan.
When asked how much the applicant owed the illegal money lender he stated that he did not know. The Tribunal discussed with the applicant that it may find it implausible that he would have no idea how much he actually owed or have made any attempt to do so. Further he has made no attempt to repay the claimed money owing.
The Tribunal considers it highly implausible that the applicant would have made no attempts to ascertain the amount he now owes or to put in place some attempt to negotiate a repayment plan if he genuinely feared harm for this reason. He informed the Tribunal that he is earning around AU$1,500 per week as [an occupation]. Despite this, he has made no attempts to resolve the claimed outstanding debt so that he can safely return to his wife and children. The Tribunal finds this evidence highly implausible and considers that it is far more plausible that no such attempts to repay the claimed debt have occurred because there is no such debt.
Thirdly the applicant has given highly inconsistent evidence with respect to past harm suffered from the illegal money lender.
When asked how much he borrowed the applicant stated that he borrowed MYR 50,000 to pay for costs associated with a [work sector] job. He informed the Tribunal that, when the project manager abandoned the project, he was left with no way to repay the debt and he and his brother just decided to leave for Australia within a month. They did not attempt to negotiate or repay the debt. He did not have contact with the illegal money lender prior to leaving.
The Tribunal pointed out to the applicant that this evidence is highly inconsistent with his original written claim where he had stated that the money lender had harmed him and his brother and taken money from him to repay the debt and taken his property to sell. The applicant responded that perhaps it was not him that put down those reasons and it may have been his friend. The Tribunal noted that the applicant had, at the outset of the hearing, confirmed the application had been prepared by himself and his brother and that he had only been advised by a friend to lodge a joint application.
The Tribunal finds that the applicant has been highly inconsistent with respect to past harm from the claimed illegal money lender. He clearly told the Tribunal that he had left Malaysia without engaging with the illegal money lender which is in stark contrast to his written claim of ongoing physical attacks and property and money demands and confiscations of his property and money by the illegal money lender. The Tribunal does not accept the applicant’s suggestion that this inconsistency was because someone else had written this down as this directly contradicts his evidence at the outset of the hearing that he and his brother were the persons who had prepared the written claims. The Tribunal would expect consistency in the applicant’s evidence about past harm from an illegal money lender and does not accept the further inconsistent evidence as to who filled out the written claim to assist the applicant’s credibility in this regard. These factors further cause the Tribunal to doubt the credibility of the applicant’s claim to owe a debt to an illegal money lender in Malaysia.
Overall conclusions – the credibility of the applicant’s claim
Given the totality of the Tribunal’s considerations the Tribunal is satisfied that the applicant’s claim to owe money to an illegal money lender in Malaysia is not credible. As such the Tribunal finds that the applicant does not owe money to an illegal money lender in Malaysia. It follows that the Tribunal is satisfied that there is no real chance of serious harm to the applicant if he were to return to his home area of Johor, Malaysia for reason of owing money to an illegal money lender either now or in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?

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).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[2] For the same reasons, the Tribunal does not accept that there is a real risk the applicant will suffer significant harm from an illegal money lender or anyone else if he returns to Malaysia as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
[2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
Overall conclusions
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision under review.
Date of hearing:       20 November 2024
Representation:       None
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.
…