1613654 (Refugee)

[2020] AATA 518

1613654 (Refugee) [2020] AATA 518 (25 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1613654

COUNTRY OF REFERENCE:                   Nepal

MEMBER:David McCulloch

DATE:25 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2020 at 3:46pm

CATCHWORDS
REFUGEE – protection visa – Nepal – imputed political opinion – father kidnapped by rival political group – threats to applicant and family – no harm to applicant at any time or to family since end of civil war – country information – credibility – inconsistent evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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 10 August 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 Nepal, applied for the visa on 9 February 2016. The applicant did not attend the interview that was scheduled with the delegate. The delegate refused to grant the visa.

3. The applicant appeared before the Tribunal on 20 February 2020. The applicant communicated with the Tribunal in English.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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) of the Act. 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).

7. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.

8. 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

9. 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 (the Department), and 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. The Tribunal has before it DFAT Country Information  Report – Nepal, 1 March 2019, a copy of which was provided to the applicant at the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11. The applicant was granted a [temporary] visa [in] December 2015, valid until [February] 2016. The applicant arrived in Australia [in] January 2016. The applicant applied for a protection visa on 9 February 2016. The applicant was granted a bridging visa on 12 March 2016.

12. The following information is apparent from the applicant’s application for protection forms. The applicant was born on [Date] in [Location], Palpa, Nepal. The applicant is a Hindu of [ethnicity], who speaks, reads, and writes Nepali. The applicant has never married nor been in a de facto relationship. The applicant’s father and mother live in Nepal, and the applicant is in contact with his father by phone. The applicant lists no address in Nepal, and states only ‘2014 – I cleared my [study] [Location]/Palpa.’ The applicant finished attending [a] School, [Town], Palpa in 2011, and completed studying at [another] School, [Town], Palpa in 2014. The applicant lists no employment and states that his occupation is as a student.

13. In the application forms, the applicant states that he left his country because it was not safe to stay, and that he may be killed if he were to return. The applicant claims that he and his family were once attacked, his father was kidnapped, and the applicant received death threats because his father is a social worker. The applicant states that he did not try to seek help, as they (unspecified) said it would be bad for the applicant and his family. The applicant could not afford to relocate. The applicant claims that the government is weak, and political leaders are corrupted and cannot protect him.

    Independent information

14. The latest DFAT Country Report – Nepal, 1 March 2019 provides as follows:

    Recent History

    …

    In 1996 the Unified Communist Party of Nepal (Maoist) (UCPN-M) began a nationwide violent insurgency against the government leading to a ten-year civil war. Almost 18,000 people were killed and over 1,300 disappeared before a peace accord was struck in 2006 following an agreement between the Maoists and an alliance of seven Nepali political parties.[1]

    [1] DFAT Country Report – Nepal, 1 March 2019, para 2.3

    …

    Political Opinion (Actual or imputed)

    All Nepali citizens 18 years and older are eligible to vote. Under the 2015 Constitution seats in the Federal Parliament are reserved for women through quotas, and substantial, proportional allocations made for Madhesis, Dalits, and other minority groups.

    Political affiliation, both at an organisational and individual level, is an important aspect of identity. This was a cause of instability during the conflict and in the years immediately following. Political youth wings, bandhs (strikes, see Private Sector/Business Community), demands for donations from local authorities and the private sector, and the obstruction of tender-bidding processes in line with political interests all contributed to this instability.

    A diverse and competitive array of political parties operates in Nepal, though the system has faced considerable instability in recent years. Unlike the 1990 constitution, the 2015 Constitution has no limitation on parties formed along ethnic lines leading to many ethnic groups to participate formally in political processes, motivated by a belief that they have been excluded from a society that has historically been ruled by dominant ethnic and caste groups.

    Nepal has enjoyed several years of political stability. A lively political environment provides an opportunity for diverse political parties and views, and an individual’s membership of a political party, along with their ability to be identified as a member and to be politically active, is generally respected. DFAT assesses the risk of a return to widespread violence is low.

    Fear of Maoists

    Communist parties won the 2017 elections in both the parliament and the provincial assembly. The main far left parties, Communist Party Nepal (Unified Marxist-Leninist) CPN-UML and Communist Party Nepal (Maoist Center) merged in 2018. Before political groups were allowed to politically organise in 2015, Maoists recruited from among ethnic minorities who participated in their insurgency.

    Tens of thousands of people displaced by the long period of conflict in Nepal (see Recent History) remain displaced. As part of the peace process, Maoists and the government agreed on a programme to allow displaced people to return to their homes. The land once belonging to many displaced people had since become occupied illegally or been given away or sold by the Maoists during the civil war. Some displaced people lack documentation, preventing them from reclaiming their property.

    While the two main Maoist parties have merged, the movement has a history of internal splits and the ideology of the two main groups, while merged, is inconsistent. Historical claims of abuses during the insurgency remain unresolved.

    Maoists have the potential to control the national agenda without resorting to violence. In general, DFAT assesses that political opponents of Maoists do not face violence, unless they participate in violent political demonstrations, in which case they face no greater threat of violence than other participants.[2]

    [2] DFAT Country Report – Nepal, 1 March 2019, paras 3.38-3.45

    Hearing, credibility, findings, and assessment

15. 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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437 (Randhawa).

16. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

17. The Tribunal is satisfied that the applicant is a citizen of Nepal and accordingly his claims will be assessed against Nepal.

18. The Tribunal notes the following evidence of relevance provided by the applicant in the Tribunal hearing. The applicant indicates that he lived as a child in a small village comprising about 20 or 25 households. The applicant indicates that his parents still live in this village and that he is in regular contact with them. The applicant’s father is currently a farmer. The applicant’s father previously worked in [work sector] before farming. The applicant indicates that his father has had some degree of political involvement in the Communist Party (UML). The applicant also indicated that his father helps people in need, engaging in social work. The applicant was asked whether his parents are suffering any difficulties in Nepal at present and he indicated that they were not.

19. The applicant indicated that at about the age of seven he left his home village for schooling where he boarded. The applicant would return to his village for holidays. The applicant indicated that he finished his secondary schooling in about mid-2014 and then returned home and lived with his parents until he came to Australia in January 2016. The applicant indicated that during this period he assisted his father in farming.

20. The Tribunal asked the applicant whether he suffered any difficulties during the period from mid-2014 until he came to Australia and the applicant indicated that he did not. When the Tribunal asked why the applicant was claiming that he could not return to Nepal, the applicant referred to his father being kidnapped for about 15 days in 2012 by the Biplap faction of the Maoists.  The applicant indicated that at this time there were other individuals in support of his father who were negotiating for his father’s release which eventually occurred. The Tribunal asked the applicant if any other difficulties faced his father. The applicant then indicated that this Maoist faction applied pressure resulting in his father’s employer not paying his father his wages. This occurred in 2013. The applicant did not indicate any other specific difficulties suffered by his father.

21. The Tribunal asked the applicant why any of this information was relevant to the applicant himself having a fear of returning to Nepal. The Tribunal noted to the applicant that he himself had given evidence that he suffered no difficulties in the year and a half before he came to Australia. In response, the applicant then changed his earlier evidence to indicate that during the year and a half before he came to Australia he would receive threatening phone calls warning the applicant and his family not to engage in political activities.

22. The Tribunal put to the applicant that his claimed circumstances, considered together with independent information as to the political situation in Nepal, (outlined in this decision), notably relative stability, would not support the proposition that the applicant would face a real chance of serious or significant harm on return to Nepal. The applicant agreed that the situation in Nepal has improved. The applicant indicated that the situation was more problematic in 2016.

23. The Tribunal noted to the applicant that the Tribunal would be looking at the future situation the applicant would face on return to Nepal. The applicant appeared to be acknowledging that he would not face a real chance of serious or significant harm on return to Nepal.

24. The Tribunal discussed with the applicant the independent information extracted in this decision from the DFAT report indicating a relatively thriving political environment in Nepal and the ability to be engaged in opposition politics. The Tribunal noted the recent DFAT assessment that Maoists now have the ability to control the political environment without resorting to violence. Issues that had faced the applicant’s father in 2012 and 2013 are not relevant to the risk of harm to the applicant today. The Tribunal asked the applicant if he had any comment on its preliminary assessment that the applicant would not face a real chance of serious or significant harm based on a number of these matters enumerated to the applicant in the hearing. In response, the applicant indicated that he had no comment.

25. As indicated, at one point in the hearing the applicant acknowledged that he did not face a real chance of serious or significant harm in Nepal today. The applicant seemed to erroneously consider that the Tribunal would be considering the situation in Nepal as it might have been in the past in assessing the risk of harm to the applicant. As the Tribunal indicated to the applicant, the test is whether the applicant would face a risk of harm on return to Nepal today or in the reasonably foreseeable future.

26. Given the applicant’s clear initial evidence that he did not face any difficulties in Nepal between mid-2014 and his arrival in Australia in January 2016, the Tribunal is not satisfied with the truth of later claims that he did in fact receive phone calls threatening him and his family as a result of their political involvement.

27. The Tribunal is not satisfied that the applicant received death threats because his father is a social worker.  The Tribunal is not satisfied that the applicant or his family were attacked in the past or that this would create any risk to the applicant or his family today.

28. For the purpose of this decision only, the Tribunal is prepared to accept that the applicant’s father was kidnapped by a faction of the Maoists in 2012 and that pressure was applied by this faction causing the applicant’s father not to be paid his wages in 2013. This is the extent of the claimed harm to have been suffered by the applicant’s father. However, the Tribunal is not satisfied that this harm to his father a number of years ago reflects a risk that would pertain to the applicant on return to Nepal today. The risk to the applicant’s father, who undertook political and social work, unlike the applicant, does not reflect the risk to the applicant. In any event, the independent information does not support the position that there would be a risk today to the applicant or his father based on involvement in politics or social work. Further and relevant, as the applicant indicated in the hearing, his father and mother are not suffering any difficulties in Nepal today. This reinforces the Tribunal in its finding that the applicant would not face a real chance of serious or significant harm given that the applicant claims that he faces harm based on harm suffered by his family.

29. Based on the foregoing and the Tribunal’s findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.

30. In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Nepal, there is a real risk that he will suffer significant harm.

31. The Departmental file contains a Certificate and Notification issued under s.438 of the Act restricting the disclosure of certain information on the file on the basis that the documents are internal working documents and relate to business affairs. The Tribunal does not consider that this provides a basis for public interest immunity. The Tribunal does not consider that the Certificate and Notification is valid. The relevant documents are a screenshot of an ICSE screen listing the applicant’s contact details, and a disclosure checklist.

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.

   David McCulloch
   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.

   …