1619431 (Refugee)

[2019] AATA 4963

1619431 (Refugee) [2019] AATA 4963 (4 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1619431

COUNTRY OF REFERENCE:                  Ireland

MEMBER:Denise Connolly

DATE:4 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 November 2019 at 9:11am

CATCHWORDS
REFUGEE – protection visa – Ireland – decision on the papers sought – hearing invitation – SMS reminders failed to deliver – non-appearance before the Tribunal – proper invitation – recession – difficulty finding work – religion – Protestant – right to enter and reside in a European Union member state – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 1 November 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 Republic of Ireland, applied for the visa on 1 August 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

3. After making the review application the applicant’s representative contacted the Tribunal and asked if the matter could be decided on the papers if the applicant did not attend the hearing. On 7 June 2017 the applicant wrote to the Tribunal and asked that the matter be expedited since he was not planning to attend the hearing. He indicated he wished for the decision to be made on the papers already lodged. Later a case officer contacted the representative and asked if the applicant wished withdraw his application and whether he would attend a hearing. The representative advised that the applicant wanted a decision made on the papers as he will be seeking ministerial intervention.

4. Due to the backlog at the Tribunal the matter was not constituted until September 2019. The Tribunal member decided that, despite the request, given the time that had passed, it was appropriate to invite the applicant to a hearing. On 13 September 2019 the Tribunal wrote to the applicant inviting him to attend a hearing on 30 October 2019. The Tribunal advised the applicant that it had considered the material before it but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal on 30 October 2019 at 9AM to give evidence and present arguments relating to the relevant issues. The letter informed the applicant that if he did not attend the scheduled hearing, the Tribunal may make a decision without taking any further action to allow or enable him to appear before it, or it may dismiss the review application without any further consideration of the application or the information before it.  The Tribunal also sent to the applicant two SMS hearing reminders, on 23 and 29 October 2019, using the last mobile number provided to the Tribunal in connection with the review. However it has received messages that delivery of the SMS reminders failed.

5. The applicant did not attend the hearing at the scheduled date and time. The Tribunal notes that the hearing invitation was sent to the email address last provided in connection with the review. There is no evidence before the Tribunal to indicate transmission of that email failed. The applicant has not sought a postponement of hearing or provided any explanation for why he did not attend the hearing. Having reviewed the material before it, the Tribunal is satisfied that the applicant was properly invited to a hearing and that the invitation was sent using the last email address provided in connection with the review, and the invitation has not been returned to sender. No satisfactory reason for the non-appearance has been given. The Tribunal also notes he had previously requested the decision be made on the papers.  Accordingly the Tribunal will proceed to make its decision on the evidence before it.

   CLAIMS AND EVIDENCE

6. When making the visa application the applicant made the following claims. He was born on [date] in Dublin Province, Republic of Ireland. He is a citizen of the Republic of Ireland. He claims that he does not have the right to enter or reside in any country other than his country of nationality. His religion is Protestant. His occupation is [Occupation 1]. He speaks, reads and writes in English. He has never married or been in a de facto relationship. His parents live in Ireland. He has regular contact with his mother and brother who both live in Dublin. He arrived in Australia [in] September 2013 as the holder of an Irish passport which was legally obtained [in] 2011. He had been granted a working holiday visa on 31 July 2013. It was valid until 30 July 2014.  Prior to travelling to Australia the applicant had worked as a [Occupation 2], a [Occupation 3] and a [Occupation 1]. He completed his leaving certificate and some post secondary education. He does not have a criminal record in Ireland.

7. In his visa application the applicant claims that he left Ireland because there was a recession and he could not find work. He also claims that he was framed by a girl and he and his family had been threatened. He lost his friends because they took her side. He wanted to come to Australia to start a new life as he felt his life in Ireland was under threat and he suffered depression. The applicant claims that he believes the threats will continue if he returns to Ireland as he has been informed by his family that threats have been made. He has built a strong career in [Occupation 1] in Australia and there is still no work in Ireland. He will be judged by people and will not be able to enjoy a happy life in Ireland. He will always be looking over his shoulder and worried that his life could be taken. He was mentally abused by people in Ireland. He moved to his father’s house in [County 1] and his father consoled and mentored him for a few weeks. He also moved to his brothers in South Dublin, away from where he grew up. He believes that the Irish police force is unreliable and biased and will not protect him.

8. The applicant believes that if he returns to Ireland he will be verbally and physically abused or killed by people who are still threatening him, and also verbally abused by friends. He will never be able to find another relationship in his area even though he knows his family is on his side. He believes the police force in Ireland is very weak and they have told him that it is not in their hands. He could move to live with his father but there is no work as it is a small countryside community. He will have no friends there and he will hate it.

9. The applicant also provided a Statutory Declaration attested on 29 July 2016 in which he states that he is a Protestant in Ireland who made the protection visa application due to fear and risk of suffering harassment and intimidation in Ireland. He has a well-founded fear of persecution due to his involvement in various social matters in his area. In the period 2009 to 2012 he experienced harassment and life-threatening incidents to himself and his family. He will not get protection and care in Ireland. He believes he will suffer harassment, intimidation, persecution and be subject to degrading treatment if he returns to Ireland.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the delegate, having considered the evidence available, was satisfied as to the applicant’s identity which he found to be consistent with his narrative and biometrics. The delegate noted that the applicant is a citizen of the Republic of Ireland. He noted that the applicant has an existing right to enter and reside in a European Union member state. He noted that the EU is an economic and political union of 28 countries which allows free movement of goods, capital, services and people between member states. He listed the members of the EU. He set out the relevant terms of the Treaty of Maastricht which states that nationals of all EU member states are citizens of the EU. According to the European Commission’s website EU nationals have freedom of movement and are entitled to reside, look for employment and work in member states and stay there even after the employment has finished. They enjoy equal treatment with nationals in access to employment, working conditions and all other social and tax advantages. While there are some exceptions to the right to free movement and residence, there are safeguards in the application of expulsion provisions. The delegate concluded that there was nothing in the applicant’s case to indicate that he would be affected by the expulsion provisions. He found that the applicant’s passport indicates he is a citizen of the EU and has a right to enter and reside in all other EU countries. He found that the applicant had not taken all steps to avail himself of the right to enter and reside in another EU country. As the applicant had not taken all possible steps to avail himself of his right to enter and reside in another EU country, he considered whether s.36(3) of the Act applies. He noted that s.36(3) does not apply if the applicant has a well-founded fear of persecution for a Convention reason or there are substantial grounds for believing the applicant is a real risk of suffering significant harm in the safe third country. He was not satisfied that the applicant had made any claims that he faced any problems in any other EU country. He also noted that various EU nations are signatories to the Refugees Convention and that governments cooperate with the Office of the UN High Commission for Refugees. He was satisfied that other EU countries would not return the applicant to his country if it was found that he has a well-founded fear of persecution for a Convention reason or that there are substantial grounds for believing that there would be a real risk of his suffering significant harm. He found therefore that s.36(3) applies.

11. The delegate was not satisfied the applicant had taken all possible steps to avail himself of right to enter and reside in any country apart from Australia, including countries of which the applicant is a national. He therefore found that the applicant has statutory protection in a third country and is not owed protection obligations by Australia, in accordance with ss.36(3), (4), (5) and (5A) of the Act. He was therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.  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).

14. 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.

15. 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

16. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Assessment of claims

17. The applicant claims to be a citizen of the Republic of Ireland and has provided to the Department a copy of his Irish passport. The delegate was satisfied that the applicant had provided sufficient evidence of his identity consistent with his narrative and biometrics. On this basis the Tribunal is satisfied that the applicant is a citizen of the Republic of Ireland. The Tribunal finds that Ireland is his receiving country for the purpose of assessing his claims for protection.  There is evidence before the Tribunal that the applicant has the right to enter and reside in other countries for the purposes of the Act as the Republic of Ireland is a member of the European Union. However the Tribunal has first considered whether the applicant has a well-founded fear of persecution or meets the complementary protection criterion.

    Does the applicant have a well-founded fear of persecution?

18. The mere fact that a person claims a fear of persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself in as much detail as is necessary to enable the Tribunal to establish the relevant facts. The Tribunal is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any of the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)

19. Essentially the applicant has claimed that he left Ireland because of the recession and difficulty finding work. Also he was framed by a girl and he and his family have been threatened and harassed. He lost friends in Ireland and suffered depression, and so came to Australia to start a new life. He fears he will be mentally, verbally and physically abused, harassed, intimidated, persecuted or killed in Ireland. He will never be able to find another relationship in the area in which he lives. He will have difficulty finding employment. He mentions he is Protestant but does not state that he fears harm because of his religion.  He claims that the Irish police force is unable to protect him and that they are biased.

20. The Tribunal wished to discuss the claims with the applicant but he chose not to attend the hearing. He indicated to the Tribunal that he wished for his decision to be made on the papers as he intended to seek Ministerial intervention. On the basis of the written claims the Tribunal is not satisfied the applicant has suffered any harm in the past or that he will be harmed if he returns to Ireland. It is not satisfied he has provided sufficient details regarding any of his claims and the Tribunal has been unable to test their veracity. The Tribunal also notes the applicant’s claims were made over 3 years ago. It wished to discuss with the applicant the possibility that his circumstances have changed, for example his employment prospects.  It accepts that Ireland suffered a recession in the past however its economic circumstances have since changed. He hints at religion being an issue but does not clearly state he will be harmed because of his religion, or why.  The applicant did not take advantage of the opportunity to discuss his claims with the Tribunal. On the basis of the scant evidence before it, the Tribunal is not satisfied it can rely on his evidence regarding any of his claims to fear harm or that he has a well-founded fear of persecution.

21. 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).

22. Is the applicant entitled to protection under the complementary protection criterion?

23. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, it has considered whether he meets the criterion for the grant of a protection visa under the complementary protection criterion.

24. As indicated above, the applicant has failed to provide sufficient evidence regarding his claims. As the applicant did not attend the hearing, the Tribunal was unable to obtain further information about his claims, or to test their veracity. The applicant has indicated that, at the time of application, he will be harassed, intimidated and subjected to degrading treatment if he returns to Ireland. On the basis of his written claims the Tribunal is not satisfied the applicant has demonstrated that this is the case. His claims also suggest his Protestant religion might be the cause of harm however he has not expanded on this.  He also indicated he will not be able to secure employment if he returns to Ireland. However the Tribunal notes he has a strong career in [Occupation 1] in Australia. The Tribunal is satisfied the applicant has skills and work experience and will be able to pursue employment if he returns to Ireland such that he will be able to subsist. He also indicated he has family support and that he has been able to live with his father in the past. On the basis of all of this evidence the Tribunal is not satisfied the applicant will be destitute and unable to subsist if he returns to Ireland. It is not satisfied he will be denied employment, or targeted or harmed by anyone or discriminated against for any reason. In view of its findings and on the evidence before it, the Tribunal is not satisfied that the applicant has suffered significant harm in Ireland or that there is a real risk he will suffer significant harm if he returns to Ireland.

1. On the evidence before it, 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 Ireland, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act. 

2. 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) and the Tribunal must affirm the decision.

3. As the Tribunal has found the applicant does not meet the criterion in s.36(2) it has not considered whether he satisfies the requirements of s.36(3) of the Act.

   DECISION

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

   Denise Connolly
   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.

   …

   Protection obligations

   (3)  Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

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

   (a)  the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

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

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

   (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.

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

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

   (b)  the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.

   Determining nationality

   (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

   (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.