2105276 (Refugee)
[2025] ARTA 1529
•30 June 2025
2105276 (REFUGEE) [2025] ARTA 1529 (30 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2105276
Tribunal Member: General Member M. Bray
Date:30 June 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 30 June 2025 at 8:57pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – fear of harm from gangsters associated with employer at state-run factory – reported pollution, deaths of residents and own health – threatened by manager and attacked by gangsters – consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 1
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 Immigration and Citizenship on 13 April 2021 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 4 August 2020. The delegate refused to grant the visa on the basis that, having regard to the evidence before them at the time of their decision, the applicant was not owed protection under Australian law.
The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled on 13 May 2025. On 9 May 2025 the applicant advised the Tribunal in writing that he would not attend the hearing and asked that it determine the review application without a hearing, and ‘on the papers’. Details regarding the Tribunal’s acceptance of that request are set out further below.
BACKGROUND
The applicant states he is a Malaysian citizen of Chinese Malaysian ethnicity aged in his [Decade] from Negeri Sembilan, Malaysia. In summary, he states he seeks protection from serious harm or death from gangsters in Malaysia connected to his employer at a state-run factory. The applicant raised concerns that the factory’s operations caused the deaths of local residents and were affecting his own health. Despite his employer’s denials and warnings, he tried to escalate his concerns to local government authorities, but gangsters intervened and repeatedly harmed and threatened him over a period of time. He left Malaysia in fear and believes the Malaysian police will not protect him as they act under government influence, and government authorities have a vested interest in the state-owned factory.
Evidence before the Department
The applicant provided to the Department a copy of his Malaysian passport, together with a completed protection visa application form. He did not provide any supporting material to the Department regarding his claims and was not invited to attend an interview about his claims.
The primary decision record shows that the delegate found the applicant was not owed refugee protection because his claims of persecution did not relate to any of the reasons in s. 5J(1)(a). The delegate found the applicant was not owed complementary protection because they concluded (based on their analysis of various country information set out in the primary refusal decision record about gangsters, and law enforcement and the judiciary in Malaysia) that the applicant could access effective state protection from the harm he fears.
Evidence before the Tribunal
The applicant provided a copy of the primary refusal decision alongside his application for review. He did not provide any further information or material in support of his protection claims during the review and up to the time of this decision.
I describe and consider the evidence before me further below, as part of my reasons and findings.
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.
Other matters
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70)
REASONS AND FINDINGS
Procedural matters
Right to present case
Given the following matters, which are documented in the Tribunal’s electronic case file regarding the review application, I am satisfied the applicant has been given a reasonable opportunity to present his case and make submissions and give evidence.
The Tribunal’s online review application process enables applicants to upload supporting documents, and the applicant uploaded the primary refusal decision. The Tribunal, via pre-hearing outreach correspondence dated 6 February 2025, asked if the applicant wanted to give any more information (beyond the protection visa application) about his claims for protection, or to indicate any further reasons he was afraid to return to his home country, and indicated he should send any additional evidence to the Tribunal in writing as soon as possible. The Tribunal received no response. Subsequently, the hearing invitation correspondence (sent on 24 April 2025 regarding a hearing on 13 May 2025) included a form enabling the applicant to indicate if he would attend the hearing, and to propose witnesses to give oral evidence and to indicate if there was further information he intended to rely on. The applicant responded, declining the hearing invitation and requesting the Tribunal proceed to a decision without a hearing on the evidence before it (more below). I find the applicant has demonstrated his ability to communicate with the Tribunal via his nominated email address.
The applicant’s request for a decision without a hearing
On 7 May 2025 the applicant wrote to the Tribunal requesting a Medicare letter, updating his telephone and email address, and withdrawing his authority for his previous authorised recipient and representative to receive correspondence and represent him in the review. He nominated email as the mode for correspondence in the review and nominated himself as the recipient for all such correspondence. He submitted a copy of the identity page of his passport alongside this correspondence.
The applicant’s written request for a decision without a hearing was received on 9 May 2025 from his email address and the applicant signed the associated hearing response sheet containing the request. He requested the Tribunal make a decision without a hearing based on the claims and information before it, because he had outlined his reasons for leaving Malaysia in his application and not wish to participate in a hearing. I find the request was made clearly and unambiguously by the applicant.
As the applicant is the sole participating party in the review, the Tribunal has discretion to accept his request for a decision without a hearing, provided it appears the issues for determination in the proceeding can be adequately determined in his absence. The issue to be determined in this review is whether the named applicant is owed protection under Australian law. The evidence before me enables me to be satisfied about the applicant’s identity and nationality, and the country to which his claims relate and to which he would return or be removed (the country of reference and ‘receiving country’). I can discern his protection claims from the information he provided in the protection visa application, where he responded to a range of questions in that form which are designed to elicit information relevant to considering protection needs. It is open to the applicant to decide what information and evidence to offer to support his case, and it is his responsibility to satisfy the Tribunal of his case for protection. I have found (above) that the applicant has had a reasonable opportunity to present his case during the review. Given these matters, I am satisfied that I can adequately determine the issues in the review, on the evidence before me and without a hearing, and am therefore willing to exercise the Tribunal’s discretion to accept the applicant’s request.
On 12 May 2025, the Tribunal communicated to the applicant in writing advising its acceptance of the request for a decision without a hearing and indicating that it would proceed to a decision without delay after 14 May 2025 and that there was no guarantee of a decision wholly favourable to him. He was encouraged to contact the Tribunal immediately if he had questions about that information. He is taken to be aware of the information, and he has made no further contact to the Tribunal up to the time and date of this decision.
In all the above circumstances, I have proceeded to decide the review application without a hearing, at the applicant’s request, and I consider the merits of his protection claims below based on the evidence, claims and arguments before me.
Consideration of protection claims
The applicant states in the protection visa application form that he was born in [Year] at Negeri Sembilan, Malaysia and lived at a single address at Seremban, Negeri Sembilan until he left Malaysia in 2016. He states he is a Malaysian citizen by birth and entered Australia in May 2016 holding a visitor visa and a Malaysian passport. He is of Malaysian Chinese ethnicity and Christian religion and speaks, reads and writes Mandarin, Malay and English. I accept these things, including having regard to the passport and biodata he provided the Department.
The issue in this case is whether the applicant is owed refugee protection or complementary protection under Australian law.
The applicant’s claims in his protection visa application form are (with minor editing) as follows.
He left Malaysia because the factory that he worked in was state-owned factory. The factory was located near the water which led the locals to suffer from cancer. There were lots of neighbours who died from it. His health condition was also getting worse from then. He had spoken with the manager about this, however the manager refuted the concerns and threatened him not to report to a higher level, otherwise, he would be in trouble. Nonetheless, the applicant felt he should report to the government and on his way to the government, he was prevented by some gangsters and kicked by them. He was told that if he continued to report it, he would be killed by them. The gangster also came to his home to smash the windows and scolded him. Nobody protected him and he was often threatened and kicked by the gangsters. His body was badly hurt. He felt that he needed to leave Malaysia if he wanted to continue to live.
The past harm he faced in Malaysia was from gangsters sent by the head of factory, who came to kick him. He was often threatened and kicked by them. He wanted to seek help from the local government, but he was prevented by the gangsters sent by the head of the factory. He tried to move to another part of Malaysia to seek safety, but he was watched by gangsters and found by the gangsters.
If he returns to Malaysia, he will be kicked by the gangsters sent by the head of the factory. He will also be threatened by them, and maybe he will be killed by them. He thinks he will be harmed or mistreated if he returns to Malaysia. He believes that the factory officer will send the gangsters to torture him.
He does not think the authorities in Malaysia can and will protect him if he goes back. The head of the government is so powerful, and he is closely connected with the local authority. The authority can get profits from the factory, therefore they will not come to protect him.
The applicant thinks he would not be able to relocate within Malaysia to an area where he would not be harmed. No matter where he relocates, he will be found by the gangsters, because they have a wide network everywhere.
For the following reasons, I have concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
I find the level of detail provided by the applicant is limited regarding key aspects of his circumstances, mindset and claims. He does not, for example, specify the name or location of the factory or describe its operations or how and why he came to believe there was a nexus between the factory’s functions and the neighbours’ deaths. The applicant does not indicate which authorities he planned to report the allegations to, or why he was willing to do so if he believed they would take no action. He does not indicate the timing of key events (such as the neighbours’ deaths, or when he raised the matters with his employer, or when he tried to escalate the matters, or the timing or more specific details of when, where and how often the gangsters attacked or threatened him, or when his last stated interactions with the gangsters were in relation to the time he left Malaysia), or even offer any overall timeframe for the sequence of events he describes. He does not indicate the place he tried to relocate to, or any details of how the gangsters reportedly located and harmed him there, or why they were motivated to continue to harm him if he did not report his concerns to government authorities. He does not all suggest that, between mid- 2016 when he left Malaysia, and 2020 when he made the protection application in Australia, he faced any ongoing health impact from the factory’s operations or took any step to press or pursue his concerns about the factory.
Despite opportunities during the review period (since 2021) the applicant has not provided any update about his circumstances in the several years since the primary refusal decision. It is his responsibility to make his case for protection, and I have found elsewhere above that he has had a reasonable opportunity to present his case to the Tribunal. On the evidence before me, I am not satisfied the applicant has engaged in any conduct in Australia which has the potential to elevate the stated risks of harm to him in Malaysia from gangsters, his employer, the government, or anyone else, or remains motivated to escalate or report the matters stated in the protection visa application form.
It is not entirely implausible that the types of events described in the protection visa application form might happen to somebody, including in Malaysia. However, given the limited detail (as noted) of the evidence before me, I am not persuaded or satisfied (or prepared to accept uncritically his written assertions) that any of the circumstances and events described in the application form happened to the applicant personally, or that he left Malaysia in 2016 in the circumstances claimed or for the reasons stated.
Overall, given the above matters and reasons, I am not satisfied (and do not accept) that any aspect of the circumstances described by the applicant in the protection visa form happened to him personally. Specifically, I do not accept he ever worked at a state-run factory whose functions cause people to die or affected his own health adversely, or that he raised such allegations or concerns with his employer, or that his employer ever threatened or warned him not to escalate his reporting of the allegations. I do not accept that gangsters ever intercepted or approached or attacked or threatened or harmed the applicant at any time or in any way described, or that the applicant ever attempted to report the matters to any authority, as claimed, or that he did not report to them because he was prevented by gangsters or out of fear of harm. I do not accept he tried to relocate within Malaysia for safety, or that gangsters tracked and harmed and threatened him in any different location.
The applicant did not at all indicate or suggest in the protection visa application form that he faced past harm in Malaysia and/or was concerned by potential future mistreatment or harm in Malaysia for any reason other than the circumstances set out in the protection visa application form, including due to his race or ethnicity, nationality, religion, political opinion or membership of any particular social group. The questions in the form are designed to elicit information relevant to an applicant’s protection needs: the applicant responded relevantly to questions in the form and is taken to have had the ability to indicate his concerns.
Having regard to the applicant’s claims, evidence and arguments, and given the above matters and findings, and having regard to his overall circumstances (as reflected by findings in this decision) I find the applicant faces no real chance of harm (including threats, significant physical injury, harassment, torture, death, or physical or mental harm in any other form) in Malaysia, due to any of the reasons in s. 5J(1)(a).
Overall, on the evidence before me, given the findings above, I find the applicant’s stated fears of persecution in Malaysia are not well-founded.
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), I have considered the alternative criterion in s 36(2)(aa).
For the reasons above I have not accepted any aspect of the applicant’s written claims in the protection visa application form about his circumstances or concerns in Malaysia regarding his employer or gangsters (or any other matter). On the evidence before me, and considering all his circumstances, I have found he faces no real chance of harm now or in the reasonably foreseeable future in Malaysia.
On the evidence before me, and given the cumulative factual findings (set out above) regarding the applicant’s protection claims and circumstances, and having regard to his overall personal characteristics and circumstances (as reflected by the findings above), I find there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia (including Negeri Sembilan), there is a real risk that he will suffer significant harm in any of the forms set out exhaustively in s. 36(2A). This finding is made having regard to the interpretive provisions set out in the Attachment below regarding forms of significant harm.
Conclusions
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) based on 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.
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