Migration Act 1958

An applicant for a protection visa must satisfy:

both of the criteria in subsections (1B) and (1C); and

at least one of the criteria in subsection (2).

A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

is a danger to Australia’s security; or

having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

For paragraph (b), see section 5M.

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; or

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

a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

is mentioned in paragraph (a); and

holds a protection visa of the same class as that applied for by the applicant; or

a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:

is mentioned in paragraph (aa); and

holds a protection visa of the same class as that applied for by the applicant.

A non‑citizen will suffer significant harm if:

the non‑citizen will be arbitrarily deprived of his or her life; or

the death penalty will be carried out on the non‑citizen; or

the non‑citizen will be subjected to torture; or

the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

the non‑citizen will be subjected to degrading treatment or punishment.

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:

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

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

the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:

the Minister has serious reasons for considering that:

the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or

the non‑citizen committed a serious non‑political crime before entering Australia; or

the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or

the Minister considers, on reasonable grounds, that:

the non‑citizen is a danger to Australia’s security; or

the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.

Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.

However, subsection (3) does not apply in relation to a country in respect of which:

the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.

Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:

the country will return the non‑citizen to another country; and

the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Also, subsection (3) does not apply in relation to a country if:

the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and

the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.

For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.

Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.