1909067 (Refugee) - [2024] ARTA 556

1909067 (REFUGEE) [2024] ARTA 556 (22 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 1909067

Tribunal: General Member Noelle Hossen
Date:22 November 2024

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

Statement made on 22 November 2024 at 3:48pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – victim of loan shark – threats from criminal gang – fear of killing – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) FCAFC 33
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 1 April 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 17 December 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on the 18 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
The applicant was born in Kuching Sarawak on [date].
The applicant arrived in Australia [in] October 2018.
Evidence before the Department
The applicant lodged the Application for Protection on the 17 December 2018.
The Delegate decided to refuse the Visa on the 1 April 2019.
In the Decision the delegate summarised the applicant’s claims as follows:
They departed Malaysia because they were in fear of debt collectors. They were operating a business with a business partner. The business partner disappeared and left them, the applicant, responsible for a substantial debt accumulated by the business.
The people that they owe money to are gangs with political backgrounds.
They were threatened by the gangs to repay the debt.
If they return to Malaysia without repaying their debts, their life will be in danger.
They do not believe that the authorities will protect them as they are connected to gangs.
The Delegate made the following assessments:” I have considered the country information and personal circumstances of the applicant. While there may be instances of corruption in the police force in Malaysia, the Malaysian authorities are willing and reasonably effective in combatting illegal money lending. While I accept the applicant may not have absolute protection in Malaysia. I find that Malaysian authorities can provide protection to the applicant, and they are willing and able to offer such protection. In addition, I find the applicant can access the protection, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system.
I am satisfied that there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, the applicant is not a refugee as defined in s5H of the Act and the criterion in s36(2)(a) of the Act is not satisfied for this reason.
The delegate was not satisfied that the applicant would face a real risk of suffering significant harm as defined by s36(2A) of the Act, from illegal money lenders if they return to Malaysia.
The applicant did not provide any further supporting documents and was not required to attend an interview with the Department.
Evidence before the Tribunal
The applicant lodged a Pre-Hearing Response and a Response to the hearing Invitation. He did not rely on any other information and reiterated the claims made in his initial Application for protection.
Evidence at the hearing.
The applicant said that he had obtained a Passport at the age of [age] years as he worked in [Country 1] for a period of 10 years as [an occupation 1]. He said that he did not attend courses, but he had learnt on the job. In 2014 he went back to live in Malaysia.
He said that after returning to Malaysia he was married [in] December 2015. His wife [is] older than he is, and he met her in his hometown of Kuching. She is living in Kuching with her parents, and they have a daughter who is [age] years of age. She was born on [date].
When they were married his wife moved in with him at his parent’s home. His parents still live in the home. He has [specified siblings] who are independent and do not live with his parents. One [brother] is [age] years of age and he lives in [Country 1]. He is an [occupation 2]. He is a permanent resident as he has lived there for 7 to 8 years. He last saw him during Chinese New Year in 2018.
His other brother has bought his own home and he is [an occupation 3]. He is [age] years of age and still lives in Malaysia. He paid 500,000MYR for his home that he purchased 2 years ago. He was married recently.
He said that his wife is not working as she cares for his daughter. He said that his wife is [age] years of age and she use to work as [an occupation 1] in Kuching.
They met in [Country 1]. He said when he returned to Malaysia, he worked at [one employer] for 6 months and then worked at [another] for 3 to 4 years.
He said that he stopped working as an employee in 2017 and became a business owner of a [business 1]. It was called [name]. He says that he thinks that he might have opened it in 2016.
He said that he worked in the business until he came to Australia. He said that he was in partnership with [name]. He said that he was his childhood friend, and they came from the same community. He said that his parents lived in Kuching and that they have now moved to [Country 1] to live with one of his brothers.
He last saw his business partner in August 2018. He believes that because of the “money issue” his parents moved to [Country 1].
He said that the money owed is a lot of money. He said that he came to Australia because of the debts but also because he wanted to provide for his family. He said that he sends 1000MYR to his wife who is then giving money to his parents. He also must pay the car loan which he borrowed as the car cost 120,000 MYR as the car is in his wife’s name and he is not sure how much is still owing on the loan as he never asks her as it is in her name.
He also has a car loan for a car that he bought in 2014 for 60,000MYR.Since he has had the car towed away, that is repossessed he has not repaid the loan. He said that he had borrowed from [a named] bank. He believes that the car is still on the road. He does have a car in Australia [that] he paid $1500. He has had the car for 4 years.
He has not seen his family for the entire time that he has been in Australia as his family are unable to get a visa to visit.
He said that he came to Australia because he knew someone who he has known for 20 years who has now returned to Malaysia after living in Australia for 15 years.
His evidence regarding his business was vague as he was not sure whether the business was still trading when he left Malaysia. He said that the business was still open when he left but was subsequently closed.
He said he owed money for 3 different lenders:
1. He owed money to suppliers of the business for [business supplies]
2. A loan from his cousin.
3. A classmate.
He said that his wife was repaying the debts and after 10 months he had paid 35,000 to the main supplier. He said he still owes his cousin 30,000MYR but his cousin said to take his time when repaying the money.
He says that he has paid back his classmate the entire amount of 80,000 MYR so effectively in respect of the business debts he only owes 30,000MYR to his cousin.
He said when he came to Australia his first job was as [occupation 1] in a [business] in [Suburb 1] and worked there for 5 to 6 months and was paid $800 per week.
His second and current job is at [another business] in [Suburb 2], and he has worked there for 5 years since it opened. He works for 40 hours each week.
The evidence regarding the partner’s debt to a finance company was vague and unconvincing. He said that it was to a finance company and more than 1 to 1.5 million MYR and he was not sure who it was owed to. He said that the finance company was [name] in Kuching. His partner had a few businesses. He said he was approached and told that he needed to find his partner so that they could get the money back. He said that there is no police report, and he was threatened verbally. He said that the person came to look for him on one occasion. He said he did not know who they were as they only know of him because of his partner in business. He said he believed that this occurred at the end of September 2018.
He called them “gangsters” and that there were 2 to 3 people sometimes 3 to 4. He said that they came almost every day sometimes 5 times a week before he left Malaysia. He said that they took his car after he left the country, and his wife told them not to harass her as she had divorced him. She moved to her parent’s house after one month that he left. He said that his parents took out 250,000 MYR to pay them in November 2018 because his brother told him that it happened. After that they did not come back to his parent’s house. They have not been back since November 2018. He said that they know that he is not in Kuching, and they do not know where his wife lives. He said that she lives with her parents and that it is 10 minutes away. The Tribunal asked him whether he could return to Malaysia and live at her parent’s place as the gangsters did not know where she lives and she has not been harassed. He said that they will find him.
He then said that he went to the police, and they told him that they could not do anything. He said that the person the money was owed to be a person with the title of “[Mr A]”. He said that the police said that they could not do anything. He said that they have political connections. He said that the police are corrupt.
He was asked why he was worried if he had been away for so long from Malaysia. He said that his friends said that they had a message through WhatsApp and that he cannot move to another part of Malaysia as he says he cannot leave his wife. He thinks that they will find him as they have their ways. The tribunal does not accept his evidence as the details were vague and unconvincing.
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
Does the applicant satisfy the refugee criterion for protection?
Refugee criterion
Section 5J of the Act states, that for the purposes of application under the Act a person has a well-founded fear of persecution, if the person fears being persecuted for reasons of race, religion, nationality, membership of particular social group or political opinion and that there is a real chance that they will be persecuted for one or more of these reasons in the event they are returned to their receiving country.
The applicant has claimed that there is a real chance that he will be seriously harmed if he is returned to Malaysia because he was in fear of a [Mr A] who he refers as a member of a gang from a financial institution who lent his friend/ business partner the sum of 1 to 1.5 million MYR. He said that the total of the loan was 1 to 1.5 million MYR. He said that they threatened to harm him and that he did go to the police, and they did not make a Police report as it was futile.
Given the vague nature of the applicant’s claims and lack and inconsistent evidence provided by the applicant the Tribunal does not accept that he will have a well-founded fear of persecution from a financier/moneylender in Malaysia. The applicant has been living in Australia for the last 6 years and provided no evidence of ongoing harassment from financiers/money lenders although the Tribunal accepts that he has said in the application that he had been harassed and threatened by them in the past. The likelihood of any future harm is unlikely.
In his written evidence contained in the protection application, the applicant failed to provide specific details of the alleged loan such as:
A) The date upon which the loans were obtained.
B) The precise name of the credit firm (Money lender or loan shark).
C) The length of time that he has known that the loans were outstanding and whether there is any interest accumulating.
Due to the limited evidence before the Tribunal, the Tribunal does not accept that the credit firm (money lender or loan shark) would continue to pursue the applicant for an alleged debt which was incurred prior to his arrival to Australia nearly 6 years ago by his friend/ business partner.
He said that he had tried to ask for help from the police but did not provide any evidence in the form of documents that he had contacted the police. The Tribunal finds that the applicant could rely on state protection as Law enforcement entities operate at both federal and state levels. The country information suggests that the RMP operates over 800 police stations across Malaysia.” Multiple local and international sources consider the RMP to be a professional and effective police force, although note the quality of its members ‘responses vary depending on the level of training, capacity, and engagement in corruption. RMP officers are among the lowest paid members of the Malaysian civil service.”[1]
[1] DFAT report Malaysia June 2024
The Tribunal does not accept the applicant’s evidence that he did contact the police, but he perceived that the police force in Malaysia would not help him.
The applicant did not provide any updated evidence of any continuing threats to himself and his family from anyone in Malaysia for the last 6 years whilst he has lived in Australia.
The applicant did not provide any evidence of his earnings save and except for the fact that his parents paid back the sum of 250,000 MYR in his oral evidence in November 2018, to placate the money lender/ financier from causing harm to him or his family for the last 6 years.
The Tribunal has also considered the fact that the applicant can also rely on the Royal Malaysian Police as based on the country information they are a professional outfit. Furthermore, the debt was not incurred in the name of the applicant so it makes no sense that he should be liable to repay it.
Accordingly, based on the applicant’s own evidence and the country information, the Tribunal finds that there is not a real chance that the applicant will be seriously harmed if he returns to Malaysia.
Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a real chance of serious harm arising from loan sharks or their runners engaged by a credit firm/ money lenders, for reasons mentioned in section 5J (1) of the Act or any other claimed reasons if he was to return to Malaysia from Australia now or in the reasonably foreseeable future. As such the Tribunal finds that he has not satisfied the criterion in section 36(2)(a) of the Act.
Complimentary Protection criterion
The Tribunal also considered whether the applicant meets the complimentary protection criterion under section 36 (2) (aa). The real risk test imposes the same standard as the real chance test applicable to the assessment of well-founded fear. MIAC v SZQRB (2013) FCAFC 33.
The Tribunal has considered whether as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm of any kind. The Tribunal has made earlier findings that the applicant does not face a real chance of serious harm arising from money lender/ financier seeking to recover the funds borrowed, from a credit firm (money lender or loan shark) if he is returned to Malaysia. Based on the applicant’s own claims and in the absence of any independent evidence to support his claim that he will be harmed if he is returned to Malaysia. As such, it is found that there was no real chance that the applicant will be seriously harmed if returned to Malaysia. As the” real risk test” is the same as the “real chance” standard, it follows that the Tribunal does not accept that there are substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia that there is a real risk of significant harm, including torture, being subjected to cruel or inhuman treatment or punishment, or being subjected to degrading treatment or punishment.

Significant harm is different from the concept of serious harm as required by section 5J (4)(b) in the context of section 36 (2)(a). The Tribunal has already made a finding that it is unlikely that the applicant will continue to be pursued by a credit firm (money lender or loan shark) to repay funds borrowed. For the reasons expressed above and based on the available country information, the Tribunal has found that the applicant will be able to find employment in Malaysia. As a result, the Tribunal finds that there is no real risk that the applicant will suffer significant harm if he is returned to Malaysia. The Tribunal finds that there is no real risk that the applicant will suffer by reason of the recovery of a debt incurred so long ago. Given his experience and based on the available country information the Tribunal finds that as a necessary and foreseeable consequence of being removed from Australia the applicant will not be significantly harmed as required by section 36(2) aa of the Act.
The applicant has not advanced any other reason in his written or oral claims that he is owed Australia’s protection obligations. Accordingly, the Tribunal finds that there are no more claims, including based on the applicant’s accepted circumstances to be considered. As such having regard to all the circumstances and findings above considered individually and cumulatively, the Tribunal finds that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia there is no real risk the applicant will suffer significant harm if he is returned to Malaysia pursuant to section 36 (2) aa of the Act.
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.
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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.
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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.
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