1604300 (Refugee)

[2018] AATA 4941

1604300 (Refugee) [2018] AATA 4941 (19 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604300

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Frances Simmons

DATE:19 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 September 2018 at 12:07pm

CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity – native Fijian – fear of harm from owners or managers – societal discrimination – denied capacity to earn livelihood – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 5K, 5L, 5LA, 36, 65, 426A, 438, 441A, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
BXD15 v MIBP [2017] FCA 1209
MZAFZ v MIBP [2016] FCA 1081
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
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 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 on 24 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Fiji, applied for the visa on 2 September 2015. The applicant was invited to, but did not attend, an interview with the delegate. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.

3. On 26 July 2018  the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing at 9:00am on 18 September 2018.  The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. The applicant was represented in relation to the review by a registered migration [agent]. On 1 August [the agent] informed the Tribunal he had advised the applicant of scheduled hearing and was awaiting instructions. No further communication was received from the applicant or his representative. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

4. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s.441A(5), the invitation was received by his representative, a registered migration agent, who informed the Tribunal that the review applicant had been informed of the scheduled hearing, and that two separate SMS reminders were also sent to the applicant about the hearing. The applicant has not contacted the Tribunal to request that the hearing be adjourned or to explain his non-appearance. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

5. 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, 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.

6. 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.

7. 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 themself 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).

8. 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.  

9. 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

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection.

12. The Tribunal has considered the evidence provided to the Department and the Tribunal. A certificate purportedly issued pursuant to s 438(1)(a) of the Act has been placed on folios 60-70 of  Departmental file restricting the disclosure of the information contained therein. If a certificate is issued because the disclosure of information or documents would be contrary to the public interest, it is necessary for the certificate to specify the reasons why. For s.438 certificates, this is any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding.[1]

    [1] S. 438(1)(a)(i).

13. In MZAFZ v MIBP [2] the Federal Court held that the Tribunal had erred in treating a non-disclosure certificate as valid where the only reasons cited in the certificate as contrary to the public interest were  ‘internal working documents’. The court held this had never been a sufficient basis for public interest immunity whether at common law or under statute and did not identify the harm that could be done to an agency by their disclosure. At best, the words ‘internal working documents’ disclosed a reason that could form part of the basis for a claim, but not the basis of the claim itself.[3]

    [2] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016).

    [3] MZAFZ v MIBP [2016] FCA 1081 (Beach J, 7 September 2016) at [37]. See also BXD15 v MIBP [2017] FCA 1209 (Flick J, 12 October 2017) at [46]-[48].

14. The certificate on the Departmental file states that the disclosure of the information would be contrary to the public interest because it is information ‘related to an internal working document and business affairs’. In the Tribunal’s judgment the certificate is invalid as the description of the reasons for restriction does not properly identify a basis for public interest immunity. As there is no material covered by the certificate which is adverse to the applicant, the Tribunal has not invited him to comment on or respond to the material. The material purportedly covered by the certificates is of an administrative nature and is not relevant to the claims made by the applicant and does not form part of the Tribunal's consideration.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

16. In his protection visa application, the applicant states that he left Fiji to visit his Aunt in [Australia] and for a holiday. Asked what would happen if he returned to Fiji, he declared that he was told he would be discriminated against because of his background as a Native Fijian. His parents are trying to get work again but they told him stay in Australia. He thought he would be harmed in Fiji ‘because the owner doesn’t want us there’ and that the authorities would not protect him because they get money from the owners and managers. Asked whether he tried to move to another part of the country to seek safety, he responded no we can’t because nowhere to live or survive, no house and no money.  He declared that relocation is not option because there’s no one to feed us, no medicare, no social security, and no place to sleep. The applicant did not attend a scheduled interview with the delegate to discuss these claims.

17. 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.[4]

    [4] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985 ) 6 FCR 155 at 169-70

18. The Tribunal accepts the applicant is an indigenous Fijian who was born in Fiji on [date]. While in Fiji the applicant resided at [a location] in [a named city], and completed his secondary education and a short course at [a] University in [a named subject]. The applicant has a lengthy migration history.[5] He first travelled to Australia holding a [temporary] visa in 2006 when he was still a child and departed in 2007. In 2011 he returned to Australia and departed in February 2012. He returned to Australia again in December 2012 and departed in March 2013, returned again in September 2013 before departing in December 2013. He last entered Australia [in] December 2014 after which time he lodged two applications for [temporary] visa onshore before applying for a permanent protection on 2 September 2015.

    [5] Tribunal file, folio 12-13 (delegate’s decision, p 1-2).

19. If the applicant had attended the scheduled hearing, the Tribunal would have sought further information about his circumstances and his claims that he will face discrimination and harm if he returns to Fiji. The Tribunal would have put to the applicant that his history of travel in and out of Fiji suggests that he did not fear harm on these occasions and that he has not claimed to have been subjected to serious harm or significant harm in Fiji in the past. The Tribunal would have asked the applicant how his circumstances, and the circumstances of his family, have changed since he last travelled to Australia. The Tribunal would have asked about the circumstances of his parents and siblings who, according to his application, all reside in Fiji.  The Tribunal would have asked the applicant why he did not attend the interview with delegate as this would have been an opportunity for him to present evidence that he is a person to whom Australia owes obligations.

20. While the Tribunal accepts that the applicant is an Indigenous Fijian, the Tribunal is not satisfied that there is support for his claim to fear serious or significant harm as an indigenous Fijian in the independent country information.  If the applicant had attended the hearing, the Tribunal would also have discussed with him information about the situation of indigenous Fijians referred to in the delegate’s decision as well as in the most recent country information report by DFAT. According to this DFAT report:

    Indigenous Fijians constitute nearly 60 per cent of Fiji’s population. Despite constituting a majority, some Fijians continue to feel a sense of economic marginalisation. It is difficult to generalise their socio-economic situation, but on average indigenous Fijians are less engaged in the cash economy, have lower educational outcomes, and have larger households. Indigenous Fijians are engaged in all aspects of the economy, but predominate in non-sugar agriculture, primary industries, fishing and fish processing, and in government. They are under-represented in business, professional services and the transport sector. …[6]

    [6] ‘DFAT Country Information Report Fiji’, 27 September 2017, p. 13-14, CISEDB50AD5787.

21. DFAT reports that the continued existence of indigenous Fijian administration (provincial councils and the iTaukei affairs ministry) is a minor form of positive discrimination towards indigenous Fijians. DFAT reports that the overwhelming majority of government services are centrally delivered and provided on a non-discriminatory basis. With respect to land rights, indigenous Fijians communally hold approximately 87 percent of all land, the government holds four per cent, and the remainder is freehold land, held by private individuals or companies. [7] In remote rural and outlying island areas, indigenous Fijians are generally an overwhelming majority of the population and are unlikely to be the victims of societal discrimination.

    [7] DFAT Country Information Report Fiji’, DFAT, 27 September 2017, p. 13-14; Tribunal file, folio 8 (Delegate’s decision, p. 6 and the country information referred to therein)

22. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. DFAT also assesses that there is a low level of societal discrimination against indigenous Fijians.[8]

    [8] ‘DFAT Country Information Report Fiji’, 27 September 2017, p. 14. DFAT’s most recent assessment of the situation of indigenous Fijians is consistent with an earlier report by DFAT which is referred to in the delegate’s decision record. 

23. The applicant has complained that because of discrimination against native Fijians he could not subsist in Fiji and that his parents have warned him not to return to Fiji. The applicant’s written claims are extremely brief, lack meaningful particulars and are not supported by the country information before the Tribunal. Without the opportunity to the question the applicant about his claims and circumstances, the situation of his parents and siblings, and what he believes will happen if he returns to Fiji, the Tribunal cannot be satisfied that the applicant will face harm of any type if he returns to Fiji now or in the reasonably foreseeable future. 

24. Accordingly, the Tribunal is not satisfied that the applicant will be at risk of harm from ‘owners’ or ‘managers’ or that he will be denied a capacity to earn a livelihood or suffer significant economic hardship and/or be homeless and/or without the means to survive for reasons related to his native Fijian background and/or because of the actions of an ‘owner’ in his area. While the Tribunal accepts that there have been some changes directed at removing positive discrimination in favour of indigenous Fijians, particularly in relation to governance and land rights, the Tribunal is not satisfied that there is a real chance or risk of the applicant suffering serious harm or significant harm as a consequence of his indigenous Fijian ethnicity or for any other reason.

25. Having regard all the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm or significant harm at the hands of ‘owners’ or the Fijian authorities or any other individuals or groups if he returns to Fiji now or in the reasonably foreseeable future for any of the reasons claimed. On the limited evidence before it, the Tribunal is not satisfied that any societal discrimination the applicant may encounter in Fiji as an indigenous Fijian would amount to serious harm or significant harm.  The Tribunal is not satisfied that the applicant has been or will be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist, or that he has suffered or will suffer significant economic hardship in Fiji that threatens his capacity to subsist, for reasons relating to the fact he is an Indigenous Fijian or for any other reason. The Tribunal is not satisfied that there is a real chance that the applicant will face discrimination amounting to serious harm or significant harm in relation to employment, healthcare or housing on the basis of being an Indigenous Fijian or for any other reason.

26. The Tribunal has considered the applicant's claims singularly and cumulatively. On the evidence before it, the Tribunal is not satisfied that there is a real chance that the applicant will be subject to serious harm or significant harm for reasons related to his being indigenous Fijian or for any other reason if he returns to Fiji now or in the reasonably foreseeable future. The Tribunal finds that there is not a real chance that the applicant would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion) if he returns to Fiji. His fear of persecution is not well-founded as required by s.5J of the Act. Therefore he is not a refugee within the meaning of s.5H.

27. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criteria in s.36(2)(aa). As noted above the applicant did not attend the hearing and, on the limited evidence before it, the Tribunal is not and cannot be satisfied that there is a real risk that he will suffer significant harm in Fiji for reasons relating to the fact the applicant is an indigenous Fijian or for any other reason. Accordingly, the Tribunal finds, based on the limited evidence available to it and having regard to the country information set out above, that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji  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).

    CONCLUSION

1. 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).

2. 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).

3. 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

4. The Tribunal affirms the decision not to grant the applicant a protection visa.

   Frances Simmons
   Member

   
   

   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.

   …

   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 them 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.

   ..

   36Protection visas – criteria provided for by this Act

   …

   (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.

   …