2204058 (Refugee) - [2025] ARTA 1960

2204058 (Refugee) [2025] ARTA 1960 (25 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2204058
Tribunal:General Member F Rogers
Date:25 August 25

Place:Sydney

Decision:The Tribunal affirms the decision under review.

Statement made on 25 August 2025 at 11:56am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – supporter of prime minister and party – participation in rallies and demonstrations – harmed by military and police – physical injuries, psychological trauma and living in hiding – delay in applying for protection – applied after return visits and divorce from wife – inconsistent claims and evidence – no current political activities or interests – mental health and consultations and no current fear of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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 10 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 21 March 2022, the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT was abolished and replaced with 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.
Further, the Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT, in a manner that is efficient and fair. Anything done in, or in relation to, the proceeding before 14 October 2024 that was validly done according to the applicable law at the time is taken to be valid under, or to have been done in accordance with, the law as it is now, for the purposes of the proceeding after 14 October 2024. Anything done in, or in relation to, the proceeding after 14 October 2024 by the AAT is taken, after that time, to have been done by the Tribunal.
The applicant, who claims to be a national of Thailand, applied for the visa on 13 July 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 22 August 2025, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
BACKGROUND
Evidence before the Department of Immigration and Multicultural Affairs (the Department)
According to information in his protection visa application, the applicant is [Age] years old. He was born in Bangkok and grew up in Chaiyaphum Province, Thailand. He first arrived in Australia [in] July 2010.
The applicant’s claims in his protection visa application form may be summarised as follows:
·His is a supporter of PM Thaksin Shinawatra’s Red Group and Red Group Members are targeted by Anti Red Group Governments.
·He is one of their targets because of his direct involvement in the Red Group to restore the democracy of Thailand.
·He was harmed by military personnel when he joined in rallies. They pushed them back and tear gassed them because they demanded democracy.
·He was hiding in the temple, jungles and caves. He was stressed because he could be caught anytime and could not eat or sleep properly.
·He could be hanged or killed by the government.
·To save himself, he left Thailand.
On 13 July 2028, the applicant was sent an acknowledgement of valid application letter by the Department. That letter advised him that he could provide additional information relating to his claims and set out the various means by which that information could be provided. No additional information was provided by the applicant.
The applicant was not interviewed by the delegate.
The delegate refused the visa application. The delegate was not satisfied that the applicant is considered by the Thai authorities or government to be a high-level opponent or political activist, or that they had been involved in political activities which would cause them to be persecuted by the authorities or any other groups in Thailand.
The delegate was therefore not satisfied that the applicant met the criteria in s5J of the Act. The delegate therefore found that the refugee criterion was not satisfied.
The delegate was satisfied that the applicant could obtain protection from the Thai authorities. She therefore considered that there was no real risk that the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act if he returned to Thailand. The delegate therefore found that the complementary protection criterion was not satisfied
Evidence before the Tribunal
An application for review of the decision was lodged by the applicant on 21 March 2022. A pre-hearing information form was sent to the applicant on 19 May 2025. The applicant responded on 21 May 2024, attaching the completed pre-hearing information form. That form indicated that he wished to attend a hearing and that he required a Thai interpreter at the hearing.
In relation to this protection claims, the applicant reiterated in this form that he was a long time supporter of former Prime Minister Thaksin Shinawatra and an active member of the UCC, commonly known as the Red Shirt movement. He says, due to his active involvement in pro-democracy rallies, including public demonstrations and his organisational support for the Red Group, he became a target of state persecution. After the 2010 crackdown and the subsequent military coupe in 2014, the political climate became increasingly hostile towards Red Group members. Fearing for his life and liberty, he was forced to leave Thailand to seek safety abroad. Remaining in the country would have led to serious harm or death due to his political beliefs and affiliations. He was involved in a peaceful rally organised to demand democratic elections where he was subjected to violence by military personnel and riot police. They used tear gas, rubber bullets, physical force and threats of imprisonment to disperse the protestors. He personally suffered respiratory issues, bruising and psychological trauma from the encounter.
On 11 July 2025, the applicant was sent a Notice of Hearing advising that a hearing had been scheduled for 22 August 2025. The applicant provided a signed response to the hearing notice on 14 July 2025. He indicated that he would participate in the hearing and he required a Thai interpreter. He also indicated that he would provide additional documents to the Tribunal and referred to a medical certificate and picture. On 27 July 2025, the applicant provided via email to the Tribunal, eight photographs and three medical certificates.
The applicant attended the hearing on 22 August 2025 and gave oral evidence in support of his claims. He did not provide any further documentation.
The Applicant’s Evidence
At the hearing, the applicant gave the following evidence:
The Application Form
·He originally came to Australia on a student visa in June 2010. He originally wanted to study in [Country], where many of his family lived, but his student visa was refused. His agent then suggested to him that he go to Australia first.
·In the time between when he applied for his student visa and when he left for Australia, he stayed in the family home in Chaiyaphum.
·He travelled to Australia with his wife and planned to study English.
·He applied for the protection visa in July 2018, because he got divorced from his wife in approximately 2017. He looked on the internet and found information about a protection visa.
·His friend assisted him to complete the protection visa application form, as he was better at English. His friend formed the words better in English and filled out the form for him. He then read the form before it was lodged. He read it again when he received the refusal decision.
·There is nothing in the application form which he wishes to update or amend, except that he was previously a Red Shirt and now he no longer has any liking towards the Red Shirts.
Family Background
·He was born in Bangkok, but grew up in Chaiyaphum Province in Thailand. He moved to Bangkok in 2000 in order to study.
·After he finished studying, he worked for [Organisation] in Bangkok.
·His father has died, but his mother still lives in Chaiyaphum Province. His is in contact with her frequently. He also has a [sister] who lives in Chaiyaphum and he is also in contact with her frequently. He has aunts, uncles and cousins who live in Thailand in [Country].
The Red Shirt Assembly
·He had an encounter with police at a Red Shirt assembly he attended at [Temple] in [District]. He does not remember the date on which this assembly took place, but it was before he left for Australia in 2010.
·He was not a leader or organiser of the Red Shirts, he just turned up to the assembly to listen to the speeches and help lift some stuff up.
·He was just standing at the assembly when the police officers turned up and they were using tear gas and rubber bullets. There was also pushing people.
·At some stage, he fell over, He still has a scar on his [body part 1] and a fracture to his [body part 2] that he suffered during the incident. His mother is a nurse, and she treated his [body part 2] by applying a splint, which he wore for about six weeks. The fracture has not healed properly, but he has not sought any further medical treatment.
·Many other people were injured at the assembly.
·After that Red Shirt assembly he never attended another one. He had no other difficulties with the authorities in Thailand.
·His family in Thailand support the Yellow Shirts. While he was in Thailand, he attended a gathering of Yellow Shirts with his family and he provided some photographs of that gathering. He is shown in some of those photographs. He is wearing a yellow shirt which his family gave to him to put on, but he doesn’t actually support the Yellow Shirts. He does not remember when this gathering was.
·Now he does not support either the Red Shirts or the Yellow Shirts
Three Return Visits to Thailand
·Since first coming to Australia in July 2010, he has returned to Australia on three occasions.
·He left Australia and returned to Thailand during the period [December] 2013-[January] 2014.
·He left Australia and returned to Thailand during the period [March]-[April] 2017.
·He left Australia and returned to Thailand during the period [May] 2018.
·On each of these occasions, he returned to Thailand because he missed his home. He went back to Chaiyaphum Province and stayed with his mother. In 2017, he also went to Chiang Mai Province, because his cousin had a baby.
·He did not have any difficulty in entering or living Thailand or with the authorities while he was in Thailand on any of these occasions.
·When he returned to Thailand in 2018, he also thought that he would apply for a protection visa in Australia, so this might be his last opportunity to visit his mother. At this stage, he had concerns for his safety while he was in Thailand.
Mental Health Issues
·While he was in Thailand in 2018, he became concerned about his mental health.
·He attended one appointment with a psychiatrist while he was in Thailand. He had no difficulties getting an appointment to see the psychiatrist. The psychiatrist prescribed some medication for him.
·He continues to attend appointments with the same psychiatrist every three months now that he is in Australia. He attends these appointments via [an] App.
·He believes that his appointments with the psychiatrist and the medication he has been prescribed have improved his mental health.
·He provided the Tribunal with three Medical Certificates from a Psychiatric Clinic dated June 2021, November 2024 and April 2025. These certificates provide a variety of diagnoses.
·He said the relevance of these certificates to his application was that, at the time, he thought he was going to be hurt, but in reality that was not the case. After he started receiving his treatment, he realised that it was just his sickness that caused him to fear.
Fear of Persecution
·He feared for his safety when he was in Thailand in 2018, but he now thinks this was because, at that time, he was sick.
·After he received some treatment, he realised that his fears may have just been because he was sick.
·He does not know fear that, if he returned to Thailand in the foreseeable future, any harm would come to him.
·While he did fear for his safety in Thailand in 2018, he has no such fears now.
Inconsistencies with the Protection Application
·Towards the end of the hearing, the Tribunal raised with the applicant a number of inconsistencies between the information in his Protection Visa Application and his evidence at hearing.
·One of these inconsistencies was that the Application referred to him being a target because of his direct involvement in the Red Group. The applicant said that he did not have direct involvement with the Red Group and he would like to say sorry because it was in the past it was just his misunderstanding.
·Another inconsistency was that the application form referred to him hiding in temples, jungles and caves and bring stressed because he could be caught at any time. The applicant said that after the Red Shirt assembly he hid in the temple, but he did not hide in jungles or caves.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is owed protection as a refugee or under the complementary protection provisions as set out above. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided the Department with a copy of his Thai passport, which expired in [2019]. At the hearing, the applicant produced his Thai passport which was issued in [2024]. Given this, and that the applicant did not indicate any concerns about his claimed identity or nationality, the Tribunal accepts that he is a national of Thailand and that Thailand is the receiving country for the purposes of his protection claims.
The Tribunal accepts that the applicant is a [Age] year old man, who was born in Bangkok and grew up in Chaiyaphum Province, Thailand.
In his application, he claimed that he was being targeted for his direct involvement in the Red Shirt Group and he could be hanged or killed by the government. At the hearing, he said that he was never directly involved in the Red Shirt Group and now he did not have any liking for them. He said that while he did have fears for his safety when he was in Thailand in 2018, he now understands that this was a result of his mental health condition and was not the reality. He currently does not fear that he would be harmed if he returned to Thailand in the forseeble future.
The applicant’s evidence in relation to his attendance at the Red Shirt assembly was appropriately detailed and the Tribunal accepts that this did occur. The applicant indicated that he was not directly involved in the Red Shirt Group and now did not have any liking for them. He also said he did not now fear that he would suffer any harm if he returned to Thailand.
For these reasons, the Tribunal accepts that:
a.The applicant was present during a Red Shirt assembly at [Temple] at some point prior to 2010;
b.Police attended and used rubber bullets and tear gas to disperse the assembly;
c.The applicant fell in the course of the assembly and suffered an injury to his [body parts 1 and 2];
d.The applicant has not attended any Red Shirt assembly since, and now does not like the Red Shirt Group; and
e.The applicant does not currently fear that he would suffer any harm if he returned to Thailand in the foreseeable future.

The applicant referred to mental health issues at the hearing and said that he had been seeing a Thailand based psychiatrist since 2018. He said he had no difficulty obtaining appointments with the psychiatrist, he had been prescribed medication and he believed that this was assisting him with his mental health conditions. The applicant did not raise any claim that, if he returned to Thailand, he would be unable to access the medical support he requires to manage his mental health conditions.
The Tribunal is satisfied that the applicant currently has no fear that he would suffer any harm if he returned to Thailand in the foreseeable future. The Tribunal is therefore satisfied that the applicant does not have a well-founded fear of persecution if he returned to Thailand.
Does the applicant satisfy the refugee criterion for protection?
Accordingly, the Tribunal is not satisfied that there is a real chance the applicant would face any form of harm upon return to Thailand.
For this reason, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution and is not satisfied that he is a refugee as per s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether the applicant meets the criteria for the grant of a protection visa under the complementary protection 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).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[1] MIAC v SZQRB [2013] FCAFC 33
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.
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