1604415 (Refugee)

[2023] AATA 4114

1604415 (Refugee) [2023] AATA 4114 (4 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1604415

COUNTRY OF REFERENCE:                   Libya

MEMBER:Simone Burford

DATE:4 September 2023

PLACE OF DECISION:  Perth

DECISION:In relation to the first, third and fourth applicants the Tribunal does not have jurisdiction.

In relation to the second applicant the Tribunal sets aside and remits the matter for reconsideration with a direction that the second applicant satisfies cls 866.211.

Statement made on 04 September 2023 at 11:41am

CATCHWORDS
REFUGEE – protection visa – Libya – first named applicant’s application not finalised – third named applicant granted Australian citizenship – fourth named applicant not included in original application – second named applicant member of the same family unit as first named applicant – protection claims remain undetermined – no jurisdiction – decision under review remitted

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 33
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 411, 499
Migration Regulations 1994 (Cth), rr 2.08AA, 2.08A; Schedule 1, Item 1401; Schedule 2

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 and Border Protection on 15 March 2016 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

   BACKGROUND

2. The applicants are a family comprised of a father, [name] (the first applicant), mother, [name] (the second applicant) and two children, [name] (the third applicant) and [name] (the fourth applicant). The applicants claim to be citizens of Libya.

3. The first and second applicants first arrived in Australia [in] August 2010 as holders of class TU, subclass 570 visas. They were subsequently granted class TU, subclass 573 visas in 2011. The third applicant was born in Australia in [year] and was granted a class TU, subclass 573 visa.

4. According to the delegate’s decision, the application for protection visas was lodged by the first, second and third applicants on 13 January 2015. The second and third applicant relied on the claims of the first applicant and did not raise their own claims for protection.

5. On 15 March 2016, the delegate refused to grant the visas as they found the first applicant did not satisfy ss 5H(2) and 36(2C) of the Migration Act because there were serious reasons for considering he had committed serious non-political crime and crimes against humanity before entering Australia.

6. The delegate refused the visas of the second and third applicants as members of the same family unit included in the application on the basis they did not satisfy s 32(2)(b)(c), that is they were not members of the same family unit as someone found to satisfy s 36(2)(a) or (aa) and was holding a protection visa.

7. The fourth applicant was born in Australia in [year], after the lodgement of the protection visa application. According to the information before the Tribunal, she was not included in either the application for the visa or the decision by the delegate. However, a Form 866, application for protection was lodged in her name [in] 2015.  While that application purported to add her to the application of the other family members (relying on the first applicant’s claims) as that application had already been determined, records indicate her application is being processed as a separate application by the Department of Home Affairs (the Department).

8. On 31 March 2016 the applicants lodged an application for review of the delegate’s decision with the Migration and Refugee Division of the Tribunal.  The fourth applicant was included as an applicant for review in the application lodged with the Tribunal. 

9. According to Tribunal records, it appears that it took some time for the Tribunal Registry to identify that the application with respect to the first applicant was as a person refused a visa because of the operation of ss 5H(2)(a) and (b) and ss 36(2C)(a)(i) and (ii) and therefore, came within the jurisdiction of the General Division of the Tribunal with respect to him given that the Registry wrote to the Department on 2 April 2020 notifying them of the application for review. The application for review with respect to the other applicants (the Applicant’s wife and daughters) was assigned to the Migration and Refugee Division as a protection visa refusal.

   LEGAL FRAMEWORK

   Criteria for a protection visa

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. Even if a person meets the elements of the refugee definition in s 5H(1), he or she may not meet the criterion in s 36(2)(a) because of the operation of s 5H(2).

16. Section 5H(2) provides that s 5H(1) does not apply if the Minister has serious reasons for considering that the person has committed a crime against peace, a war crime, or a crime against humanity, or has committed a serious non-political crime before entering Australia, or has been guilty of acts contrary to the purposes and principles of the United Nations. However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 5H(2) issues: ss 411(1)(c) and (d).

17. Similarly, even if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm, he or she may be ineligible for a protection visa by operation of s 36(2C). Section 36(2C) provides that an applicant is taken not to satisfy the criterion in s 36(2)(aa) where the Minister has serious reasons for considering that they have committed a war crime, crime against peace, crime against humanity or an act contrary to the purposes and principle of the United Nations. A person will also be taken not to satisfy s 36(2)(aa) if the Minister considers, on reasonable grounds, that they are a danger to Australia’s security or the Australian community (having been convicted by final judgment of a particularly serious crime). However, the Migration and Refugee Division of this Tribunal, considering an application for review of a decision to refuse or cancel a Protection visa under Part 7 of the Act, has no power to determine s 36(2C) issues: ss 411(c), (d).

    Mandatory considerations

18. 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.

19. For the reasons outlined below the Tribunal did not consider country information was relevant to determining the review.

    President’s Direction

20. The Tribunal also had regard to the President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018. In particular:

    ·that ‘members are to take all reasonable steps to complete cases allocated to them as quickly as possible’;[1] and

    ·with respect to protection visa refusals, that ‘generally, in reviewing a decision to refuse the grant of a protection visa, members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.’[2]

    [1] President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018, at [2.1] (consistent with the Administrative Appeals Tribunal Act 1975 Cth, s.33(1)(b)).

    [2]President’s Direction ‘Conducting Migration and Refugee Reviews’, 1 August 2018, at [8.1].

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The first issue in this case is whether the Tribunal has jurisdiction in this application with respect to each of the applicants.  Each of the applicants is considered further below.

22. The second issue which arises is what is the correct and preferrable decision to be made with respect to any applications where the Tribunal has jurisdiction, give information before the Tribunal that the application for protection with respect to the first applicant has not been finalised (that is no final determination of his application for protection has been made). 

    Findings and reasons

23. As noted above, on 15 March 2016, the delegate refused to grant the visas.

24. The delegate found that the first applicant had a well-founded fear of persecution as defined under s 5J of the Act, but that he did not satisfy the definition of refugee due to the operation of s 5H(2)(a) and (b). The delegate also found that the first applicant faced a real risk of significant harm if he were involuntarily returned to Libya, but that he did not satisfy the criterion in s 36(2)(aa) of the Act because of the operation of s 36(2C)(a)(i) and (ii). The delegate found there were serious reasons for considering the first applicant had committed serious non-political crime and crimes against humanity before entering Australia.

    The first applicant

25. Tribunal records indicate that [in] 2023 the Tribunal made a decision in the General Division on the review application of the first applicant. This decision was subsequently set aside and remitted for reconsideration with a direction that sections 5H(2) and 36(2C)(a) of the Migration Act did not apply to the first applicant.[3]

    [3] [Source deleted]

26. On 14 August 2023 the Tribunal wrote to the applicants and invited them to comment on the proposed finding that the Tribunal did not have jurisdiction in the Migration and Refugee Division in relation to the first applicant. 

27. On 22 August 2023 the first applicant responded and stated they agreed that the Tribunal did not have jurisdiction in the Migration and Refugee Division in relation to them.

28. The Tribunal finds that it has no jurisdiction in respect of the first applicant in the current review application.[4] This is because the visa was refused on the basis of s5H(2) and s36(2C) and the decision was reviewed and decided by the General Division: s500(1)(c).

    [4] Tribunal ref 1604415.

    The third applicant

29. On 25 May 2023 the Tribunal received a request to withdraw the third named applicant from the review application as she has been granted Australian citizenship. Evidence of the grant of Australian citizenship on 10 April 2023 was provided to the Tribunal.

30. On 14 August 2023 the Tribunal wrote to the applicants and invited them to comment on the proposed acceptance of the withdrawal in relation to the third applicant. 

31. On 22 August 2023 the first applicant responded and stated they accepted the Tribunal’s proposal to accept the withdrawal in relation to the third applicant.

32. Having considered the information before it, the Tribunal accepts the withdrawal and accordingly finds that it no longer has jurisdiction to review the delegate’s decision in relation to the third applicant.

    The fourth applicant

33. On 7 April 2016 the Tribunal received a request to withdraw the fourth applicant from the review application as she was not included in the original application for a protection visa nor was she included in decision to refuse to grant the protection visa. As noted above, the Tribunal understands that the fourth applicant has a protection visa application which is still awaiting decision by the Department.

34. On 14 August 2023 the Tribunal wrote to the applicants and invited them to comment on the proposed acceptance of the withdrawal in relation to the fourth applicant.  On 22 August 2023 the first named applicant responded and stated they accepted the Tribunal’s proposal to accept the withdrawal in relation to the fourth applicant.

35. Having considered the information before it, the Tribunal accepts the withdrawal and accordingly finds that it does not have jurisdiction in relation to the fourth applicant in this matter.

    The second applicant

36. The only applicant in this review application who the Tribunal finds it has remaining jurisdiction is [the second applicant]. As noted earlier, [the second applicant] did not advance protection claims in her own right in the original visa application. She relied on the claims made by the first applicant. The delegate’s decision record indicates she was refused a protection visa as a member of the same family unit as the first applicant, who did not meet the criteria for the grant of a protection visa by operation of ss 5H(2) and 36(2C) of the Act.

37. As noted above, the General Division of the Tribunal has set aside the decision refusing the first applicant a protection visa and remitted that application for reconsideration with a direction that ss 5H(2) and 36(2C)(a) of the Act do not apply to him. Accordingly, the first applicant’s protection visa application and his protection claims remain to be finally determined.

38. The Tribunal notes no issue was raised in the decision with the applicants claims to be members of the same family unit.  There is no information before the Tribunal to suggest they are not members of the same family unit.

39. The Tribunal notes that the first, second and third applicants made a combined application for review. Item 1401(3)(c) in Schedule 1 of the Regulations provides that an application by a person claiming to be an member of the family unit of a person who is an applicant for a Protection (Class XA) visa may be made at the same time and place, and combined with, the application of that person. Departmental policy provides that these Regulations allow applicants seeking to be considered as a member of the same family unit to lodge and combine their applications at the same time by claiming to be member of the family unit of each other.[5]

    [5] PAM, 25/8/23 at 9.1.2

40. If a primary decision to refuse a Protection visa is set aside by a merits review tribunal and the application is remitted to the Department for reconsideration, the application becomes undecided. Therefore, a request may be made at that stage to add a partner or dependent child to the application under reg. 2.08A or 2.08AAA.

41. The application with respect to the first applicant, on whose protection claims the second applicant relied on and with whom her application was combined, has been remitted and as such is undecided.  In circumstances where the first applicant’s protection claims are undecided, the Tribunal considers the correct and preferrable decision is to remit the second applicant’s application for reconsideration as part of the combined application with the first applicant.  The Tribunal notes this would also make it possible to consider the fourth applicant’s application to be considered as a member of the family unit.

42. On 14 August 2023 the Tribunal wrote to the applicants and invited them to comment on the Tribunal’s proposal to remit her review application. On 22 August 2023 the first applicant responded and stated they agreed with this proposal.

43. The Tribunal notes that the only criterion for the grant of the visa addressed in the delegate’s decision were those arising under s.36(2) of the Act. The delegate found, among other things, that the applicants did not meet s.36(2)(b) on the basis that the first applicant did not meet the criteria for protection.  The Tribunal considers that such a finding cannot be made in circumstances where part of the combined application has been remitted and the first applicant’s claims for protection have not yet been decided. 

44. Mindful of the President’s Direction and the Tribunal’s objectives under the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal considers it is sufficient to resolve the application on review to remit the matter for reconsideration as a combined application. The Tribunal notes in this regard that such an approach would not restrict any rights of review which the applicants may have with respect to any future primary decision with respect to the other criteria for the grant of the visas.

45. The Tribunal finds that the second applicant claims to be a member of the same family unit as the first applicant who claims to meet the criterion in paragraph 36(2)(a) or (aa) and makes specific claims as to why those criterion are satisfied (see cls 866.211(3)(a)).   She claims to be a member of the same family unit as the first applicant who is applicant for a Subclass 866 (Protection) visa (see cls 866.211(3)(b)).   Accordingly, the second applicant satisfies cls 866.211.

46. Having considered all the circumstances of the application the Tribunal finds the correct and preferrable decision is to remit the second applicant’s application for reconsideration as part of the combined application.

    DECISION

47. In relation to the first, third and fourth applicants the Tribunal does not have jurisdiction.

48. In relation to the second applicant the Tribunal sets aside and remits the matter for reconsideration with the direction that the second applicant satisfies 866.211.  

    Simone Burford
    Senior 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.

    …

    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.

    …