1605153 (Refugee)

[2017] AATA 2684

1605153 (Refugee) [2017] AATA 2684 (28 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605153

COUNTRY OF REFERENCE:                  Malaysia

MEMBER:Linda Holub

DATE:28 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 September 2017 at 4:32pm

CATCHWORDS
Refugee – Protection visa – Malaysia – Religion – Hindu – Christian – Social group – Victim of harassment by Muslim students – Credibility Issues

LEGISLATION
Migration Act 11958, ss 5H-LA, 36, 65, 499
Migration Regulations 1994, 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 [in] March 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Malaysia, applied for the visa [in] November 2015. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.  

5. 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

1. 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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS

1. The issue in this case is whether the applicant has a well-founded fear of persecution in Malaysia for one or more of the reasons set out in the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

2. The applicant’s written claims for protection are contained in the application forms submitted by the applicant to the Department of Immigration and Border Protection.  The Tribunal has before it the Department’s file relating to the applicant’s application and the Tribunal’s file relation to the review application.  The Tribunal has also given consideration to the delegate’s decision record.

3. The following is a summary of claims and information provided by the applicant in his Protection visa application:

   a.When he was at school he faced some stressful times by teachers and classmates who were Muslim.  They scolded him with harsh words so he started to hate the environment with the Muslims.

   b.This problem continued to persist at secondary school. There were fights between Muslims and non-Muslims at school which resulted in outrage amongst the Muslim community so there was bullying outside the school and they were treated like animals.  His family sent him out of his home area into another area to live.

   c.In Australia he is free to practice Christianity that he performs here.

4. Following the delegate’s decision dated [in] July 2016 the applicant applied to the Tribunal for a review of that decision. The Tribunal wrote to the applicant on 14 June 2017 inviting him to a hearing on 11 July 2017.  At the commencement of the hearing the applicant advised the Tribunal that he had provided his former migration agent with a further submission. It appeared that the Tribunal had not received that submission. The Tribunal adjourned the hearing and provided the applicant with an opportunity to submit the submission prior to an adjourned hearing.  That hearing was held on 27 September 2017.  The Tribunal took evidence from the applicant on that date. 

5. Given the applicant’s English skills he did not seek the assistance of an interpreter.

FINDINGS AND REASONS

Nationality

1. The Tribunal has sighted a photocopy of the applicant’s passport on the Department’s file and accepts he is a national of Malaysia as claimed.

2. The Tribunal finds that the claims should be assessed against Malaysia for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa). Similarly, the Tribunal is satisfied that the applicant does not have a right to enter and reside in another country for the purposes of s.36(3).

Material under a public interest non-disclosure certificate

1. No non-disclosure certificates are contained on the Department’s file.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does Australia have protection obligations to the applicant under the refugee criterion?

1. In considering the above issues the Tribunal has had regard to the Department of Foreign Affairs and Trade’s Country Report on Malaysia, dated 19 July 2016.  The Tribunal has also had regard to the applicant’s written application to the Department and his oral evidence to the Tribunal.

2. At hearing the Tribunal asked the applicant about the preparation of his Protection visa application.  He stated that he wrote the application himself with the assistance of a friend. The Tribunal confirmed that he knew what was written in his application and he had no changes to make.

3. The applicant stated that he came to Australia [in] February 2004 and that he applied for protection at the end of 2015. When asked why it took him so long to do so he said he originally came to Australia [with] other Malaysians and they paid an agent to assist them to come to Australia and to obtain visas and work for them. He stated that that agent did not do so.

4. In further discussing the extensive delay between his arrival in Australia and his application for protection, the applicant stated that he engaged three migration agents/lawyers who appear to have cheated him and did not submit applications.  He stated that he eventually spoke with a famous lawyer who advised that he was unable to assist him.

5. The Tribunal asked, given that he wrote the application himself why he had not done so earlier rather than relying on agents who proved to be unhelpful. The applicant said that his English was not good when he initially came to Australia.

6. The applicant referred to an incident where he was captured by [Australian] police in 2010.  He stated that he was advised by them that he was not an overstayer. The Tribunal asked the applicant why they would say that given his visa have expired in 2004. He stated he did not know but he assumed that perhaps one of the agents he engaged had submitted an application on his behalf. The Tribunal put it to him it is a reasonable expectation that he should be aware of his migration status and whether he was in Australia legally or not.

7. The Tribunal indicated to the applicant that despite his explanation, it had concerns about the delay in applying for protection and that courts have found in the past that a delay of even three months can indicate that an applicant does not genuinely fear the harm they claim. He was provided with an opportunity to comment. The applicant stated that he had engaged various agents to try and assist him but they did not do so.

8. The Tribunal asked the applicant if he had his passport with him. He did. The Tribunal asked him to confirm the date of issue and the date of expiry and that this was the passport he had travelled to Australia on.  The information provided by the applicant from his passport was consistent with the copy of the front page of his passport on the Department’s file[1].

   [1] DIBP file, unfolioed item.

9. The Tribunal asked the applicant about information that he provided in a letter to the Department of Immigration dated [in] June 2010 a copy of which he had submitted to the Tribunal. In that letter he wrote that:

   “I have burnt my passport and I only have my Malaysian identity card with me”[2].

   [2] AAT file, folio 45.

10. The Tribunal asked the applicant why he had written this as he still retains that passport. He stated that he does not know why he wrote that.

11. The Tribunal indicated to the applicant that it has concerns about his credibility to the extent that it raised questions about his overall claims and evidence. He was asked if he had any further comments to make. He did not.

12. The Tribunal asked the applicant why he had come to Australia. He responded that he came because he had problems with Muslims. He stated that he came to have a peaceful life.

13. The Tribunal asked the applicant for further details about the claimed harm he suffered in Malaysia. He referred to being bashed by at school Muslim boys, being bullied, being unhappy and threatened at times.

14. The applicant stated that he had finished school towards the end of [year] at the age of [age]. Having saved some money he travelled to Australia in February 2004. He stated that during his time at high school his teachers spoke to him harshly, calling him terrible words, such as refugee, because they came from [another country] and sometimes insulted them.   He stated that he was bashed on many occasions but could not remember exactly when. Sometimes they were the same boys sometimes they were different. He stated that if he went to the police it would make it worse. The Tribunal asked the applicant what he was threatened with. He stated that he was sometimes threatened that he would be killed or they would break his leg or cut his hand.

15. The Tribunal asked the applicant why he was harassed in this way. He responded that that’s just what happened. He stated that the Hindu students in his area were greatly outnumbered by Muslim students.

16. The Tribunal confirmed with the applicant on two occasions that his claims related to events that occurred at high school.

17. The Tribunal asked the applicant about a statement in his written claims that “the problem [of stressful times by teachers and classmates] continue to persist in high school”[3] suggesting he had problems earlier then high school.  The Tribunal put it to the applicant that this appeared to be inconsistent with his oral evidence that problems only happened at high school. He responded that prior to high school the problems were not so bad. The Tribunal indicated to the applicant that he seemed to be changing his evidence when reference was made to his written claims. He responded that in primary school they just teased you and the teachers were not so harsh. The Tribunal indicated to the applicant once again that it had concerns regarding his credibility as he was changing his evidence as the hearing progressed.

    [3] DIPB file, folio is 31 & 47.

18. The Tribunal asked the applicant whether there were any other problems during this time. He referred to the fact that the Muslim boys did whatever they wanted but that going to the police was not helpful as they would be blamed for the problems and potentially bashed by police.  The Tribunal asked the applicant whether there were any fights between students. He stated there were no fights. The Tribunal asked the applicant about another aspect of his written claims which indicated there were fights between Muslims and non-Muslims at school. The applicant responded that they could not win so they were not real fights.

19. The Tribunal asked the applicant about his claims that he is free to practice Christianity in Australia. The applicant stated that he came to Australia as a Hindu but since he started mingling with Christians he started to worship Christian gods. The Tribunal asked the applicant which Christian gods he was referring to.  The applicant referred to Jesus Christ. When asked what denomination he is involved in, the applicant referred to the Seventh-day Adventists church and added that in [Australia] he went to any church.

20. The applicant confirmed that he had not been baptised and when asked if he intends to be his stated that when he is fully committed, understands more, spends more time doing God’s work and praying he might be ready to be baptised. The applicant referred to regular [evening] attendance at the Seventh-day Adventists in [an Australian suburb] where he lives.

21. The Tribunal discussed with the applicant the possibility of maintaining his Christian beliefs and practice in Malaysia and read relevant sections of the DFAT Country Report on Malaysia to him regarding the fact that close to 10 per cent of Malaysia’s  total population are Christian and that a broad range of ethnicities practise Christianity and that in the main Christians are generally free to practise their religion[4].

    [4] DFAT Country Information Report: Malaysia, 19 July 2016, pg.13.

22. The applicant agreed that he would not have a problem maintaining his faith in Malaysia if he chose to do so.

23. The Tribunal put significant weight on DFAT’s assessment that Malaysian Christians are generally able to practise their religion without interference. Occasionally they may face a low level of official discrimination but do not face official or societal discrimination or violence on a day-to-day basis[5].

    [5] Ibid., p.14.

24. The Tribunal discussed with the applicant the submission he had provided to the Tribunal after his initial hearing and confirmed with him that he was not personally referenced in this material. The submission contains printouts from various blog sites[6]. The Tribunal asked the applicant if there was anything specific that he wanted to draw to the attention of the Tribunal. The applicant responded that the submission provides examples of things that can happen in Malaysia and indicates that if you are non-Muslim there can be problems in Malaysia.

    [6] AAT file, folios 46-71.

25. The applicant stated that he had difficulty renewing his passport which had expired some time ago. The applicant claimed that when he tried to renew Malaysian passport, they said he could have a temporary passport.  When he said he does not want a temporary passport they asked why he does not want to return to Malaysia he told them it was because of the Muslims, after which they were rude to him and hang up.  Because of this he is concerned that he will be asked by Malaysia immigration officials why he has been away for so long. If he tells them he had problems with Muslim people it could be a problem for him.

26. The Tribunal referred the applicant to information contained in the DFAT Country Information Report on Malaysia regarding the Treatment of Returnees:

    “5.20 Many thousands of Malaysians enter and leave the country every day. People who return to Malaysia after several years’ absence are unlikely to face adverse attention on their return on account of their absence. Malaysians who over-stayed their work or tourist visas, or breached visa conditions in other countries are regularly returned to Malaysia with no attention paid to them by authorities”[7].

    [7] DFAT Country Information Report: Malaysia, 19 July 2016, pg.27.

27. In response the applicant stated that he doesn’t know what reasons to tell them. He stated he did not come to Australia to make money but rather to live freely.

28. The Tribunal alerted the applicant that it had a number of concerns regarding his claims and evidence.  The Tribunal referred to the lengthy delay between his arrival in Australia and his claim for protection.  Despite the fact that the applicant claimed to have engaged a number of agents to assist, the applicant was prepared to remain in Australia illegally for an extended period.  The Tribunal noted that he chose not to use an interpreter and he wrote his application in English himself, indicating that he had good English language skills and could have sought out information himself at an earlier time, even if his language skills were not as good as they are now.

29. The Tribunal had serious concerns about the fact that the applicant was prepared to provide false information to Australian authorities regarding the destruction of his passport.  The applicant was unable to provide a plausible explanation for why he had done so in writing.

30. The Tribunal was also concerned about the inconsistencies between the applicant’s written claims and oral evidence.  In addition, the written claims were scant and he was unable to provide further details that satisfied the Tribunal that he suffered serious or significant harm in the past or that there was a real risk that he would do so in the future.  The Tribunal did not find the applicant’s evidence convincing and given the significant credibility concerns was not satisfied as to the veracity of his claims.  Overall, taking into account the applicant’s claims and evidence, the Tribunal does not find the applicant to be a credible witness.

31. In view of the above the Tribunal was not satisfied that the applicant will suffer serious harm if he returns to Malaysia now or in the reasonably foreseeable future. 

32. Having considered the applicant's claims and his evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Malaysia now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act.  Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

Does Australia have protection obligations to the applicant under the complementary
protection criterion?

1. The Tribunal has considered the applicant's claims under complementary protection. In view of the above findings, the Tribunal is not satisfied that there is a real risk that he will suffer significant harm if he returns to Malaysia now or in the reasonably foreseeable future.

2. Having considered the applicant's claims and his evidence, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Malaysia now or in the reasonably foreseeable future.

3. Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.

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

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

Linda Holub
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.

…