1413749 (Refugee)

[2016] AATA 3690

1413749 (Refugee) [2016] AATA 3690 (17 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1413749

COUNTRY OF REFERENCE:                  Nigeria

MEMBER:Chris Thwaites

DATE:17 April 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 17 April 2016 at 10:42am

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act)[1].

   [1] The relevant law is attached to this Statement of Decision and Reasons

2. The applicant, who claims to be a citizen of Nigeria, applied for the visa [in] January 2014 and the delegate refused to grant the visa [in] July 2014.

3. On 11 August 2014 the applicant applied to the Tribunal for review of that decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The Tribunal has before it the Department’s file relating to the applicant’s protection visa application and the Tribunal’s file relating to the review application. The Tribunal has also had consideration of the delegate’s decision record provide to the Tribunal by the applicant.

5. The applicant’s written reasons for claiming protection are contained in his visa application form and in a written statement of claim.

6. In the visa application form the applicant states the reasons he left Nigeria for Australia are twofold; the first and manifest reason was to complement his previous [skills] with a [qualification] in order to acquire adequate educational qualifications needed to achieve his career goals of becoming [occupation].

7. The second and latent reason was to seek protection in Australia and get a chance to exhibit his sexual orientation as a homosexual without being subjected to homophobic attitudes. The applicant states that the social settings in Nigeria are still barbaric, and this in turn shapes most inhabitants view of reality on certain issues such as homosexuality. This has led to widespread social taboos, hostility and discrimination towards gay people in Nigeria. Most Nigerians hold the view that sexual relationships between two people of the same sex are evil and should not be tolerated according to religious doctrines. The applicant notes that recently lawmakers in Nigeria passed and approved a bill to criminalise homosexual relationships/marriage, and violators risk getting up to a 14 years jail term.

8. The applicant states that if he should go back to Nigeria, he will be subject to a series of hostilities (in the form of physical attack, torture and blackmail), discrimination and the risk of being jailed for 14 years if caught in a same sex relationship or exhibiting his homosexual orientation.

9. The applicant indicates he thinks he may be harmed/mistreated by the general public who hold the view that same sex relationships are evil and against religious doctrines, and that he will be prosecuted and jailed for up to 14 years by the authorities. The applicant thinks this will happen to him if he returns to Nigeria because about 50% of Nigerians are Muslims, while 40% are Christians, and both religious doctrines strictly go against same sex relationships/marriage and this has formed the basis of the hostilities and discrimination shown against gay people in Nigeria.

10. The applicant indicates he does not think the authorities in Nigeria can and will protect him if he goes back because the current law in Nigeria criminalises same sex relationships/marriage and violators are prosecuted and get up to 14 years jail term.

11. In his written statement of claim the applicant states, in summary, that unlike most males, during puberty he found himself attracted to boys rather than girls. At first he felt his sexuality was dysfunctional and this made him experience cognitive dissonance for several months until he began to see himself as being normal with no sexuality related psychological disorders.

12. The applicant states he was born into a Muslim home, and his parents were blessed with [children], of which he is [one]. He and his siblings grew up in a household with strict adherence to Islamist morals and doctrines. Therefore the applicant could not come out to his parents or siblings as he would be subjected to negative reactions, viewed as mentally sick, and possessed with evil demons. This led the applicant to decide to travel to Australia to seek protection as well is garner adequate educational qualifications to become [occupation]. The applicant therefore entered Australia legally on a student visa to study [a course] at [a university] and arrived in Australia [in] 2013.

13. The applicant states that unlike Nigeria, Australia is less homophobic and her population is gay friendly with little or no homophobic attitudes being expressed towards gay people. Before coming to Australia the applicant couldn’t exhibit his sexual orientation. Since being in Australia the applicant has attended a dedicated nightclub to the LGBT community in [City 1] called [name deleted]. Although he has no serious partners at the moment he has had two sessions of one night stands with two different bisexual males he met at the nightclub. The applicant states there is also a yearly festival for LGBT community in [City 1].. Unfortunately he couldn’t attend that year’s festival as it was held towards the end of his semester at university and he had a lot of assignments to submit and also needed to prepare for his exams. The applicant states there is just a friendly atmosphere and general acceptance for LGBT people in Australia, unlike Nigeria. The applicant states he feels more comfortable with himself in Australia and it will be a great joy for him if he is granted protection in Australia and not required to return to Nigeria.

14. The applicant also provided to the Department copies of the Nigerian Same Sex Marriage (Prohibition) Bill 2011, and an online news article from news.com published on 31 May 2013 titled “Nigeria passes law banning gay marriage and gay rights groups; prison term of up to 14 years”, in support of his application.

15. On 23 July 2014 the delegate refused to grant the applicant a protection visa because, while noting that there is no monolithic gay identity which the applicant could be expected to adopt, and accepting that there is some inherent difficulty in proving one’s sexual orientation, on the balance of the evidence before the delegate, he found that there was not enough detailed and credible evidence in the matter regarding the applicant’s sexual orientation to persuade him the applicant was a member of a particular social group ‘homosexual males in Nigeria’. Therefore the delegate was not satisfied the applicant had a real chance of being persecuted for a Refugees Convention reason and therefore was not satisfied the applicant’s fear was well-founded. The delegate was also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nigeria, there was a real chance the applicant would be subjected to significant harm. Therefore the delegate was not satisfied Australia had protection obligations to the applicant.

16. As noted above, on 11 August 2014 the applicant applied to the Tribunal for review of that decision.

17. On 18 December 2014 the applicant provided to the Tribunal a written statement addressing the delegate’s reasons for rejecting his protection visa. In summary, the applicant states the major reason the delegate refused to grant the visa was because there wasn’t enough evidence to support his claims of being a homosexual and therefore he was not given the benefit of the doubt. The applicant states he has since attended the [City 1] [pride] festival [and] served as a volunteer for the [City 1] Gay and Lesbian [organisation] helping sell merchandise. The applicant provided a photograph of himself at the [organisation] stall and a copy of his [organisation] membership confirmation email to the Tribunal.

18. In the written statement the applicant also addresses the issue of taking up residence in another Economic Community of West African States (ECOWAS) member country. He also states his parents in Nigeria have found out he is gay and is no longer adhering to Islamic doctrines, and have stopped all financial support and have told him he is a disgrace to the family and that they will only reconsider this decision if the applicant decides to come home and seek deliverance from an Islamic cleric who will cast out the demons in him.

19. The applicant appeared before the Tribunal on 30 March 2016 to give evidence and present arguments. During the hearing the applicant told the Tribunal he fears returning to Nigeria because his family will harm him and he will be tortured by Islamic clerics cutting and scarring his body in an effort to cast out the demons in him. He told the Tribunal homosexuality is not tolerated by Muslims or the Nigerian community and it is against the law and punished by the authorities and society. He also told the Tribunal he believes he will be harmed in all other ECOWAS member countries as homosexuality is against the law in most if not all of these countries and is not tolerated by any of the communities.

20. During the hearing the applicant told the Tribunal that because his family stopped financially supporting him he had to cease his studies in [City 1], and he moved to [City 2] in late 2014. He told the Tribunal that since moving to [City 2] he has attended a number of gay venues and volunteered during the most recent [festival]. The applicant submitted a copy of the [volunteer] roster and a photograph of himself volunteering at that festival.

21. The Tribunal has had the advantage of more evidence than was before the delegate, and for the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.

    FINDINGS AND REASONS

    Nationality

22. On the basis of the applicant’s consistent information provided to the Department and Tribunal about his place of birth and citizenship of Nigeria, and the copy of the applicant’s Nigerian passport provided to the Department, the Tribunal finds that the applicant is a national of Nigeria.  As the Tribunal has found that the applicant is a national of Nigeria, the Tribunal also finds that Nigeria is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

    Credibility

23. The Tribunal found the applicant understandably anxious and nervous when discussing the intimate details of his life and his sexual orientation; nevertheless he was open and responsive to the Tribunal’s questions. During the hearing the Tribunal questioned the applicant in detail about his experiences as a homosexual in Nigeria and in Australia. The applicant’s oral evidence was consistent with the information in his visa applicant form and his written statement, and the information he provided during his interview with the delegate. The applicant did not exaggerate or embellish his evidence when the Tribunal noted his limited contacts with individuals and organisations and the homosexual community in Australia. He gave persuasive reasons why he limited his exposure during his time in [City 1], and his efforts to meet people and expand his experiences once he moved to [City 2]. The Tribunal accepts the applicant is shy and comes from a conservative society and religion that does not tolerate homosexuality. The Tribunal found the applicant’s oral evidence consistent and plausible and the Tribunal accepts the applicant is a witness of truth and has told the Tribunal the truth in relation to critical aspects of his claims.

    Refugee Convention criterion: s.36(2)(a)

24. In order to meet the criterion for a protection visa under s.36(2)(a), the applicant must satisfy the Tribunal that they are a person in respect of whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention). The Convention requires, amongst other things, that the applicant’s fear of persecution must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

25. During the hearing the Tribunal spoke to the applicant about his background in Nigeria, his family composition, education and experiences growing up. The Tribunal spoke to the applicant in detail about his growing awareness of his attraction to other males and his developing understanding of homosexuality and his secret rejection of the teachings of Islam. The applicant spoke about the negotiations he undertook to convince his family to support him moving to Australia to study, and his hopes of being able to live openly as a gay man. The Tribunal spoke to the applicant about his relationships with other men and his contact with the gay community and organisations in Australia and his fears and efforts to make further contacts in Australia.  The Tribunal spoke to the applicant about how his family became aware of his sexual orientation and rejection of Islam, and his fears of what would happen if he returned to Nigeria.

26. On the evidence before it, the Tribunal accepts the applicant did not feel safe to explore his sexuality while living in Nigeria and once he had arrived and settled in Australia he has attended gay nightclubs in [City 1] and [City 2] and has had a number of sexual encounters with men. The Tribunal accepts the applicant joined [an] organisation in [City 1] and volunteered during the [festival], and also volunteered at [a] festival in [City 2]. The Tribunal accepts the applicant is a homosexual, and while he has only had limited sexual encounters with other men, the Tribunal accepts he hopes to find a same sex partner to establish a long-term loving relationship. The Tribunal accepts the applicant will continue to seek same sex relationships in the future.

27. The Tribunal accepts the applicant’s family in Nigeria knows of his sexual orientation and would physically harm him in an effort to cast out demons if he returned to his family home. The Tribunal accepts the country information, including the Department of Foreign Affairs and Trade (DFAT) Country Report on Nigeria published on 10 February 2015, indicates homosexuals face significant legal and societal discrimination and violence in Nigeria. Few individuals live openly as Lesbian Gay Bisexual Transgender or Intersex (LGBTI). Homosexual acts are banned under state and federal laws, and the federal Same Sex Marriage (Prohibition) Act 2013 imposes sentences of up to 10 years for individuals who engage in homosexual sex, and 14 years for individuals who enter into same-sex marriage or civil union; public displays of same-sex behaviour attract 10 year jail terms, and failure to report the existence of a homosexual individual to authorities attracts a five-year jail term. The DFAT report indicates it is illegal to register, operate or participate in gay clubs, societies or organisations, and violations attracts a 10 year jail term. In the 12 northern states applying Shari law, homosexual acts can attract the death penalty. The report states that despite the low levels of official enforcement of various legal provisions, DFAT assesses homosexuals in Nigeria face high levels of legal discrimination under federal and state based Shari law. The report also notes that homosexuality is widely opposed across all socio-economic groups and is considered to be alien to the traditional African culture. DFAT assesses that members of the LGBTI community face high levels of societal discrimination in Nigeria. Individuals are forced to hide their sexuality to avoid discrimination and violence, and these risks increase in the northern states, particularly those applying sharia law.

28. The Tribunal accepts the applicant will continue to seek same sex relationships wherever he is in the future, including if he returned to Nigeria. The Tribunal accepts that there is a real chance the applicant will be identified as a homosexual and he will suffer serious harm, including significant physical harassment and ill treatment, from his family and his local community if he returned to his family home. It is not an answer to his claims to suggest he could avoid the harm by, as he previously did, concealing and suppressing his sexual orientation. The Tribunal accepts that the need to act discreetly to avoid the threat of serious harm constitutes persecution.

29. The Tribunal also accepts state and federal laws in Nigeria criminalise homosexual behaviour, and the federal Same Sex Marriage (Prohibition) Act 2013, which came into force in January 2014, imposes jail terms of 10 years for individuals who engage in homosexual sex or public displays of same sex behaviour. While generally expressed to apply to anyone who commits certain acts, the Tribunal accepts that in reality these laws are targeted specifically at homosexuals and have a persecutory purpose, and are not laws of general application. In these circumstances the Tribunal accepts state protection is not available. The Tribunal accepts the country information indicates that societal discrimination based on sexual orientation is widespread throughout Nigeria and that the laws mentioned above apply throughout the whole country. In these circumstances the feared harm is not localised and is nation-wide and relocation within Nigeria is not an option. 

30. The Tribunal accepts that homosexual men are a particular social group for the purposes of the Refugee Convention. The Tribunal accepts that that group can be identified by a characteristic or attribute, being their sexual orientation, common to all members of the group, and that that characteristic is not a shared fear of persecution, and does distinguish them for the society at large.

31. The Tribunal accepts that the applicant’s membership of a particular social group, homosexual men, is the essential and significant reason for the persecution as required by paragraph 91R(1)(a) of the Act. The Tribunal also finds that the harm the applicant fears involves ‘serious harm’ as it amounts to significant physical harassment and significant physical ill-treatment as listed in paragraph 91R(2), and as required by paragraph 91R(1)(b) of the Act. The Tribunal also finds that the persecution which the applicant fears involves systematic and discriminatory conduct, as required by paragraph 91R(1)(c).

32. The Tribunal finds there is a real chance the applicant will suffer persecution for reasons of his membership of this particular social group, if he returned to Nigeria, now or in the reasonably foreseeable future. Therefore the Tribunal is satisfied the applicant’s fear of persecution in Nigeria is well-founded.

33. During the hearing the Tribunal discussed with the applicant whether he could enter and reside in any other country, noting the operation of s.36(3) of the Act.

34. Section 36(3) of the Act states that Australia is taken not to have protection obligations in respect of a noncitizen 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 rose or is expressed, any other country apart from Australia, including countries of which the noncitizen is a national. Section 36(4) states that subsection (3) does not apply in relation to a country in respect of which the noncitizen has a well-founded fear of being persecuted for Refugee Convention reasons.

1. The Tribunal drew the applicant’s attention to the Economic Community of West African States (ECOWAS), and noted that country information, including the DFAT report, indicates that Nigerians can freely enter the other ECOWAS member countries with their Nigerian passport, and that Nigerians have a right to reside in the other ECOWAS member countries[2].

   [2] Article 59 of the ECOWAS Revised Treaty 1991 provides that citizens of the member states shall have a right to enter and reside in all member states; 

2. The applicant told the Tribunal he fears persecution in all the ECOWAS countries as they all have laws against homosexuals and homosexuality is not tolerated by the societies in those countries. The Tribunal has considered the available country information in relation to all the ECOWAS member states, including human rights reports from the US State Department, the UK Home Office, Human Rights Watch and Amnesty International, as well as information from the International Lesbian, Gay, Bisexual, Trans and Intersex Association and the Open Society. Based on that information, the Tribunal finds that Gambia, Guinea, Liberia, Mali, Nigeria, Senegal, Sierra Leone and Togo all have laws that criminalise homosexual sex, or behaviour that is considered to be “against the order of nature”. The Tribunal accepts these laws have a persecutory purpose and are not laws of general application. On the information before it the Tribunal accepts there is a real chance the applicant would suffer serious harm because of his membership of a particular social group, homosexual men, from the authorities in those countries, and that state protection would not be available. Therefore the Tribunal accepts the applicant has a well-founded fear of persecution for reasons of his membership of a particular social group, being homosexual men, in Gambia, Guinea, Liberia, Mali, Senegal, Sierra Leone and Togo.   

3. While the country information indicates similar laws have been repealed in the other ECOWAS member countries, it also indicates significant cultural and religious and societal discrimination against homosexuals continues to exist in these countries and there is limited evidence to indicate governments have made efforts to combat it or protect against it.  On the country information before it, the Tribunal is unable to find with confidence that the chance of the applicant suffering serious harm for reasons of his sexual orientation, if he lived openly as a gay man, which the Tribunal accepts he intends to do, in any of these countries, would be remote or a far-fetched possibility. Accordingly the Tribunal accepts there is a real chance the applicant will suffer serious harm in each of these countries for reasons of his membership of a particular social group, being homosexual men. The Tribunal does not consider the applicant would be able to access the level of protection to which he is entitled to expect according to international standards from the relative authorities in each or any of those countries. Therefore, on the information before it, the Tribunal finds the applicant has a well-founded fear of persecution in all ECOWAS countries for reasons of his membership of a particular social group, being homosexual men.

4. Therefore, while the Tribunal accepts the applicant has a right to enter and reside in all ECOWAS member countries, s.36(3) does not apply, as the applicant has a well-founded fear of being persecuted for reasons of his membership of a particular social group, in those countries.

   CONCLUSION

5. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).

   DECISION

6. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

   Chris Thwaites
   Member  17 April 2016

   
   

   ATTACHMENT:  RELEVANT LAW

7. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

   Refugee criterion

8. 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).

9. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

   owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

10. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.

11. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

12. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

13. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

14. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

15. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

16. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

17. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

18. 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 a protection 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 the applicant 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’).

19. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

20. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.

    Protection Obligations

21. Section 36(3) states 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.

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

    (a)      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
    (b)      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.

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

    (a)      the country will return the non-citizen to another country; and
    (b)      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.

    (5A)      Also, subsection (3) does not apply in relation to a country if:

    (a)      the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
    (b)      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.