1908000 (Refugee) - [2024] ARTA 701

1908000 (REFUGEE) [2024] ARTA 701 (28 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 1908000
Tribunal:General Member L Luo
Date:28 November 2024

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

CATCHWORDS
REFUGEE – protection visa – Malaysia – political freedom and free speech – returned failed asylum seeker – limited evidence, no claim of harm and low profile – passport and unhindered departure – passport now expired, but no visa overstay or breach of conditions – consent to decision without hearing – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
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 2 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a national of Malaysia, applied for the visa on 5 January 2019.
The applicant applied for review of this decision with the Administrative Appeals Tribunal (AAT) on 2 April 2019. On 14 October 2024, the 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.
On 11 March 2024, the AAT wrote to the applicant and asked that she provide further information about her claims for protection via a pre-hearing information request form. On 14 March 2024, the applicant returned a copy of the pre-hearing information request form. In the section titled “claims for protection”, where the applicant was invited to provide further information about her claims for protection, the applicant provided a list of her protection claims as summarised by the Department.
On 12 September 2024, the AAT invited the applicant to give oral evidence and present arguments at a hearing on 31 October 2024. On 18 October 2024, the Tribunal wrote to the applicant advising that the hearing date has been postponed and a new date will be advised once available. On 25 October 2024 the applicant advised the Tribunal that she did not wish to attend the hearing and requested that the Tribunal make a decision on the review without a hearing. On 6 November 2024, the Tribunal wrote to the applicant confirming that she consented to a decision on the papers and asked that she provide any further evidence to support her claims by 14 November 2024. The applicant did not respond to this letter.
I have considered s 106(3) of the Administrative Review Tribunal Act 2014 (the ART Act) which sets out the circumstances that allow the Tribunal to make a decision without holding a hearing. These include that the applicant has requested the Tribunal make its decision without holding a hearing, and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
I am satisfied that the applicant has requested the Tribunal make its decision without holding a hearing.
The issues for determination in this matter are whether the applicant meets s 36(2)(a) or (aa) of the Act because:
·the applicant has a well-founded fear of persecution in her receiving country for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
·there are 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.
After taking into account the material I have before me and the opportunities the applicant has been given to provide further evidence in support of her application, I am satisfied that I can determine the applicant’s identity and receiving country, and form conclusions about whether the applicant meets the criteria in s 36(2)(a) and (aa). Accordingly, I find that the issues for determination in the proceeding can be adequately determined without a hearing.
This matter has therefore been determined on the evidence available to the Tribunal.
BACKGROUND
The applicant is a [Age] year old Chinese Malaysian woman of Buddhist faith. She was born in Kuala Lumpur and lived in Hulu Langat, Selangor, immediately before leaving Malaysia for Australia in December 2018.
Evidence before the Department
In her protection visa application, the applicant claimed that she left Malaysia for better freedom and free speech. She feels that Malaysians are under control and have no political freedom. She claimed that if she returned to Malaysia, everything will be controlled by local authorities and she won’t be able to leave. She stated she did not experience harm in Malaysia and does not think she will be harmed or mistreated if she returns to Malaysia. She also stated that it is difficult to travel overseas and work in other states, she will not be protected by the authorities because there is a big population in Malaysia and the government cannot take care of its citizens, and she cannot relocate within Malaysia because she is restricted from moving to other provinces even for work.
The applicant provided a copy of her valid Malaysian passport and her national ID card. She did not provide any other supporting documents and was not invited to an interview with the Department.
The delegate refused to grant the visa on the basis that there was no real chance the applicant would face serious harm in Malaysia because of her political opinion.
Evidence before the Tribunal
The applicant provided a copy of the Department’s decision to the Tribunal. In response to the Tribunal’s request for further information, the applicant provided a list of her protection claims as summarised by the Department:
·She departed Malaysia because she had no political freedom and freedom of speech
·It is difficult to travel overseas and work in other states of Malaysia
·If she returned to Malaysia, she will be controlled by the local authorities and she will not be able to leave
·She does not believe the authorities can protect her because the population is too large and the government is not taking care of its citizens.
I have also viewed a copy of the applicant’s movement records.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.
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 applicant will face a real chance of serious harm or real risk of significant harm now or in the reasonably foreseeable future if she returns to Malaysia. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Having viewed a copy of the applicant’s Malaysian passport, national ID card and the Department’s ID verification check, I accept that the applicant is a Malaysian citizen and find that the receiving country is Malaysia.
Lack of political freedom and freedom of speech
I have considered the DFAT country report[1] which indicates that Article 10 of the Malaysian Constitution guarantees the right to freedom of speech, freedom of assembly, and freedom of expression, although it allows these rights to be restricted by law in the interest of security. Malaysia is generally intolerant of anti-government protests. Individuals who criticise government generally or on social media face a low risk of official discrimination and a moderate risk where they broach politically sensitive topics, criticise Malaysian royalty or where their criticism is especially prominent. Individuals are generally not at risk of violence on the grounds of their political affiliations, though these risks are higher for prominent social media users than those without a significant public profile.
[1] DFAT Country Information Report Malaysia, 24 June 2024.
Taking into account the general nature of the applicant’s protection visa claims and her acceptance of the Department’s summary of her claims, I find that the applicant has a general belief that her freedoms are curtailed in Malaysia and that this belief is not based on harm she has experienced. As the applicant was critical of the Malaysian government’s ability to take care of its citizens in her visa application, I accept that the applicant may criticise the Malaysian government from time to time. However, as the applicant has provided limited evidence in support of her claims, I do not accept that any criticism she has made, or will make, is or will be prominent in nature. I do not accept that she is a prominent social media user or has a significant public profile. I also do not accept the applicant has been or will be involved in anti-government protests in Malaysia.
Accordingly, I find that there is no real chance the applicant will face serious harm and no real risk she will face significant harm now or in the reasonably foreseeable future in Malaysia on the basis of her actual or imputed political opinion.
Excessive government control and restrictions on movement
The applicant claims that she had faced government control and was restricted from leaving the country or moving to another state for work. She also claims that when she returns, she will face the same control and restrictions on movement.
I accept the applicant was born in Kuala Lumpur and lived in Hulu Langat from birth. Based on the applicant’s visa application and movement records, I accept that the applicant had not travelled to any other country prior to her arrival in Australia.
The applicant’s passport was issued in [2018]. Her visitor visa to Australia was granted the next day, and she arrived in Australia on that visa 26 days later. I find that the applicant had no difficulty obtaining a passport, and once she did so she faced no difficulty departing Malaysia.
I have considered the DFAT country report which indicates that although the Constitution provides for freedom of internal movement, non-Sabah and Sarawak residents must present national identity cards to gain entry to these states, and can visit for a maximum period of three months. Sabah and Sarawak both issue working visas to non-residents, although these can be difficult to obtain. Both states limit purchase of land by non-residents. Far more people migrate from Sarawak and Sabah to peninsular Malaysia than in the other direction, due to better work opportunities and higher salaries. Subject to the restrictions in relation to Sabah and Sarawak, Malaysians can and do relocate internally, generally to larger urban areas in peninsular Malaysia, for economic reasons.
I accept the applicant did not move to any other state in Malaysia while she lived there. However, I do not accept that this was due to excessive government control or any restriction on her movement. The applicant has provided limited evidence to support her claim, and I find that she was not restricted by the government or local authorities from relocating to another area for work or other purposes.
I accept the applicant will face restrictions if she wished to move to Sabah or Sarawak. However, given that the applicant has lived in Selangor her whole life, and she has not claimed that she intends to move to those states, I find that she will not seek to move to Sabah or Sarawak for work, particularly as work opportunities in those states are scarce compared to Selangor. I find that if the applicant wished to move to another state for work on peninsular Malaysian in the future, she will not be restricted from doing so.
Accordingly, I find that there is no real chance the applicant will face serious harm and no real risk she will face significant harm now or in the reasonably foreseeable future in Malaysia if she wished to relocate and/or travel within Malaysia and/or overseas.
Treatment of returnees and failed asylum seekers
I have considered the DFAT country report which indicates that under Malaysian immigration law, Malaysians who overstay their visa or breach visa conditions in other countries may be blacklisted and prevented from further travel, normally for a period of up to two years. Malaysians who are returned from Australia face a passport ban of five years under an agreement between the two countries. In practice, cases are unlikely to come to the attention of authorities unless the Malaysian is removed (i.e. deported) from another country or applies to renew a passport through a diplomatic mission overseas.
I accept that the applicant’s Malaysian passport expired in late 2023 and that she may come to the attention of authorities for this reason either on her return, or if she applies to renew her passport in Australia. However, as the applicant did not overstay her visa or breach any visa conditions, I do not accept she will be blacklisted and prevented from travel for that reason. I do accept that, if the applicant is deported from Australia, she will face a passport ban of five years.
I do not accept that such a passport ban amounts to serious or significant harm. The ban is only temporary, and the applicant will be able to apply for a passport once the five year period ends.
Accordingly, I find that there is no real chance the applicant will face serious harm and no real risk she will face significant harm now or in the reasonably foreseeable future in Malaysia as a returnee or failed asylum seeker.
Lack of protection from authorities and failure by the government to look after its citizens
The applicant claims that the Malaysian government cannot protect her as Malaysia has a big population and the government is not taking care of its citizens. The applicant’s claim is vague and lacking in detail, and I do not accept that she will be harmed on this basis in the future. Accordingly, I find that there is no real chance the applicant will face serious harm and no real risk she will face significant harm now or in the reasonably foreseeable future in Malaysia due to lack of protection from the authorities or failure by the government to look after its citizens.
Claims arising from applicant’s profile
I accept the applicant is Chinese Malaysian, a Buddhist and a woman. I have considered whether she would face a real chance of persecution on the basis of her race, religion or gender or her overall profile.
The DFAT country report states that Chinese Malaysians comprise approximately 22.8 per cent of the Malaysian population, and is one of the largest overseas Chinese communities in the world and Malaysia’s second largest ethnic group. There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians and Chinese Malaysians freely participate in political life. Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.

The DFAT country report states that there is a guarantee of freedom of religion under Article 11 of the Malaysian Constitution. Buddhists represent just under 20 per cent of the total population of Malaysia. Most Buddhists in Malaysia are Chinese Malaysian. DFAT assesses that Buddhists are generally not at risk of societal discrimination.
The DFAT country report states that discrimination against women is banned under the Constitution, although discrimination and inequality persist for women and girls in Malaysia. While gender based violence exists, the applicant has not claimed that she has been subject to such violence or will be subject to such violence in the future.
After considering the country information and the applicant’s evidence she did not experience harm in Malaysia and does not think she will be harmed or mistreated if she returns to Malaysia, I find that there is no real chance the applicant will face serious harm and no real risk she will face significant harm now or in the reasonably foreseeable future in Malaysia on the basis of being Chinese Malaysian, a Buddhist or a woman individually or cumulatively.
CONCLUSION
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).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…