1701533 (Refugee)

[2020] AATA 925

1701533 (Refugee) [2020] AATA 925 (20 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1701533

COUNTRY OF REFERENCE:                   India

MEMBER:Denise Connolly

DATE:20 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 March 2020 at 8:51am

CATCHWORDS

REFUGEE – protection visa – India – religion – member of religious/social organisation – attacks by Sikhs – delay in applying for protection – advised to apply for protection by migration agent – false claims – decision under review affirmed

LEGISLATION          

Migration Act 1958 (Cth), ss 36, 65

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 11 January 2017 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 India, applied for the visa on 19 November 2015. 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.   

CLAIMS AND EVIDENCE

Evidence to the Department

1. When making the visa application the applicant provided the following information. He was born on [date] in Rajasthan, India. He is a citizen of India. He speaks, reads and writes in English and Hindi. His religion is Hindu. He married his wife [in] August 2008. They have a [child] born on [date] in India. His parents, wife, [child] and [siblings] reside in India. He provided a copy of his Indian passport issued [in] 2006 obtained through normal procedures. He applied for a visitor visa on 23 July 2013 which was granted on 6 August 2013.  He arrived in Australia as the holder of a Subclass 600 Visitor visa [in] November 2013. Prior to travelling to Australia the applicant was employed in [a] section of a private company in [Country 1].

2. The applicant visited [Country 2], from [February] 2012 to [April] 2012, [Country 3] [in October 2012], [Country 4] [in November 2012], [Country 5] [in April 2013], [Country 6] [in October 2013], and [another country in October 2013]. From [April] 2012 to [November] 2013 the applicant was working in [Country 1].

3. The applicant claims he went to [Country 2] to avoid Sikh militants of Ganga Nagar because he is a strong believer and follower of Dera Saccha Sauda (DSS). He claims he may be beaten and killed as a result of fighting and discrimination by Sikhs. He claims he was chased and beaten by Sikhs opposed to DSS. The police cannot protect him 24 hours a day unless bribes are paid.  He did not have the resources so he left India.

Evidence to the Tribunal

1. The applicant provided to the Tribunal a copy of the delegate’s decision record. It sets out the applicant’s migration history. He was granted a Subclass 600 visitor visa on 6 August 2013. He arrived in Australia [in] November 2013. His visitor visa ceased on 10 December 2013. He did not apply for protection until 19 November 2015.

2. The delegate records information that the applicant provided in his interview on 3 January 2017. The Tribunal has listened to the recording of the interview and is satisfied the delegate has accurately recorded the applicant’s oral evidence.

3. The applicant claimed he was once detained by the authorities over his involvement in an altercation. He clarified that this was while giving a statement to the police after an incident in June 2007. He continues to be a DSS follower and practices at home by praying. He does not attend any place of worship, or participate in any group activities, with other DSS followers. He follows the principles however as he is a vegetarian and does not drink or smoke.

4. The applicant claimed that he travelled internationally multiple times but has never sought protection in another country. He applied for a tourist visa to [Country 7] but it was refused in late 2013.

5. The applicant has a [Qualification] awarded in 1999.  He worked as [an Occupation 1] in New Delhi and [an Occupation 2] in [Country 1]. He claimed he has not been working in Australia. His family and Indian charities were supporting him. He and his wife are informally separated. She lives in Hanumangarh, India. He is not in contact with her. He ceased contact with his family in order to protect them. His family supports him financially in place of receiving his inheritance. His father is [an Occupation 3].

6. The applicant told the delegate that if he returns to India he will not feel safe because Sikhs will attack him. He left India because he had been attacked twice. The local authorities will not protect him. The first incident occurred in June 2007. He was accosted after leaving his place of worship, attacked by a group of 6 Sikhs, armed with bats. He was injured and went to the local hospital. He reported the incident to the police who took a statement. When he returned to the police for an update he saw a person he believed to be one of his attackers, in custody, but he did not follow the matter up with the police.

7. The second incident occurred [in] November 2008 when he and a group of fellow DSS followers were returning to his hometown in Rajasthan from New Delhi. They were attacked by a group of unknown men who surprised them from the bushes. The applicant and his fellow followers were able to escape but were followed by the attackers, who were on motorbikes, for about 15 km. He did not report this matter to the local authorities. He suspected these men were Sikhs because the vehicle the applicant was in had a DSS symbol on the front.

8. The applicant claimed that after the incident he moved to [Country 1] where, in terms of his practice, he performed his DSS prayer in a Sikh temple. This resulted in an argument with a Sikh worshipper who the applicant believes was a [Country 1] police officer, although he was not able to explain how he knew this.

9. The delegate invited the applicant to comment on specific issues:

   ·     relocation to another city in India, as he has the relevant language skills, work experience, education and ability to establish himself in a foreign country. The applicant claimed that the police will not be able to protect him 24 hours a day.

   ·     The delay in making his protection visa application, almost 2 years after arriving in Australia. The applicant claimed that he was scared that he would be attacked in Australia by Sikhs.

   ·     The time passed since the incidents. It had been almost 9 years since the attack by a group of men he thought were Sikhs. The delegate questioned whether he still feared harm. The applicant claimed that his friend had called him and advised him that “the man” (the [Country 1] police officer) was still looking for him.

10. The applicant was invited to provide a copy of his police record from the 2007 incident. He subsequently submitted an email on 10 January 2017 which included an untranslated letter, multiple screenshots of media articles reporting unrest between DSS followers and Sikhs, dating back to 2007, and recent articles reporting incidents when DSS followers were injured.

11. The delegate accepted that the applicant may be a follower of DSS, although he noted that the applicant indicated he does not attend group meditation teachings or participate in community support, all activities which are core principles of the DSS faith. The delegate formed the view the applicant’s faith is limited and unlikely to result in the applicant having a significant profile in India.

12. The delegate did not accept the applicant’s claims to fear harm because it took two years after arriving in Australia to make a protection visa application and he had routinely travelled internationally, and voluntarily returned to India. He noted the applicant was only able to recount two incidents over an eight year period. He formed the view the attacks appeared to be opportunistic rather than targeted. He found the applicant’s fear that he was attacked by Sikhs in November 2008 was speculative, given the men who attacked him were unidentified. He formed the view the incident may have been a general criminal act rather than a targeted attack. He also noted there were no incidents or threats between December 2008 and November 2013 during the periods the applicant was in India. The delegate formed the view that a period of five years without any threat or harm would suggest that the applicant’s fear of persecution in India may no longer be present and he is unlikely to face harm if he returned to India in the foreseeable future. He was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

Hearing on 29 January 2020 - initial dismissal

1. The applicant was invited to a hearing to be held on 29 January 2020. On that day, the applicant sent to the Tribunal a medical certificate stating he was unfit to attend an interview on 29 and 30 January 2020. He did not ask the Tribunal to postpone the hearing.  A case officer called the applicant twice to ascertain whether he was asking for a postponement of hearing, and whether he intended to appear before the Tribunal at some future date. The applicant did not answer his phone.  The case officer then wrote to the applicant advising that, if it was his intention to request a postponement of hearing, he needed to put the request in writing for the Tribunal to consider. The applicant did not respond.

2. The applicant did not appear before the Tribunal on that day. The Tribunal was satisfied the applicant was properly invited to a hearing in accordance with s.441A(5), the invitation was not returned to sender, and two separate SMS reminders were also sent to the review applicant about the hearing. The Tribunal dismissed the application but gave the applicant an opportunity to seek reinstatement in accordance with the Act. The applicant did this on 7 February 2020. The Tribunal agreed to reinstate the matter and the applicant was invited to another hearing.

Hearing on 17 March 2020

1. At the hearing on 17 March 2020 the applicant was given the option of using an interpreter. He indicated he could give his evidence in English. Having heard his oral evidence the Tribunal has formed the view the applicant was able to understand the Tribunal’s explanations and questions, and give his evidence effectively.

2. After the Tribunal explained the requirements of the law and noted that he claimed to fear returning to India because he is a DSS follower, the applicant stated that those claims are false. He told the Tribunal he came to Australia with the purpose of earning money, not because of any fear. After being here for two years he could not find a way to earn money so he approached a migration agent, [Mr A], ([Agency name], Migration Agent [Number]). [Mr A] asked him what he wanted to achieve. He said he wanted to live and work in Australia. [Mr A] recommended he apply for a protection visa and make claims that he followed DSS and was attacked.

3. The applicant told the Tribunal that the claims about attacks in India are not true. [Mr A] prepared his visa application. He is very angry with [Mr A] because it would have been more appropriate for him to apply for a student visa and then get permanent residence via the skilled pathway. He believes he was poorly advised.  His family is very angry with him because he has been here nearly 7 years and still does not have permanent residence. [Mr A] also did not explain to him that, even if his protection visa application was successful, he would not be able to sponsor his wife to come to Australia.

4. The applicant told the Tribunal that he is Hindu and goes to temple to pray. He was not attacked because of religion in India. When asked if he feared anything happening to him on his return to India, he said nothing will happen to him, except his wife might divorce him because she is so angry. She tweeted the AFP and alleged the applicant is a criminal because she is so angry with him.

5. The applicant asked the Tribunal to let him stay in Australia for 2 or 3 years so he can earn some money to take back to India. He indicated if he could take some money back his family would be happy. He has just received work rights and he has completed [courses] so has the skills to secure employment in Australia. The Tribunal explained its role and the purpose of the protection visa application and that it does not have the discretion to make a favourable decision merely because of his circumstances; he still must meet the requirement of the law.

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 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).

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.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

Nationality

1. The Tribunal finds that the applicant is a citizen of India, based on his Indian passport and his oral evidence, and will assess his claims on this basis. The Tribunal finds that he is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

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

1. The applicant has admitted to the Tribunal that the claims made in his visa application are false. He told the Tribunal he made the application on the advice of a migration agent, [Mr A]. He has admitted he was not attacked in India as claimed in the visa application. He has also told the Tribunal he does not fear being attacked in India.  He thinks the only thing that might happen is that his wife might divorce him.

2. On the basis of the applicant’s oral evidence provided at the hearing the Tribunal accepts he is a practising Hindu. However it is satisfied the applicant does not fear harm in India on the basis of his religion.

3. The Tribunal finds, on the basis of the applicant’s oral evidence provided at the hearing, that the applicant has not been harmed in the past in India because he is a DSS follower.  It accepts his evidence that the claims made that he was attacked in India are not true. It also accepts his evidence that he does not fear harm in India because of his religion or for any other of the reasons set out in the Act. He did not indicate he intends to practice as a DSS follower if he returns to India in the foreseeable future.  The Tribunal is satisfied the applicant will be able to practice his Hindu faith in India without fear of persecution. There is no other current evidence to indicate he now fears harm in India for one or more of the reasons set out in the Act.

4. The Tribunal is not satisfied the applicant fears being persecuted in India for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5. 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).

Does the applicant meet the complementary protection criteria?

1. The Tribunal must also consider whether the applicant meets the criteria for complementary protection.  A person meets the complementary protection criteria if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

2. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

3. The applicant has told the Tribunal his family are very angry with him because he has been in Australia for nearly 7 years and has not been able to secure permanent residence. The Tribunal accepts that this is the case. It also accepts that this may result in his wife divorcing him. While this is a very unfortunate circumstance for the applicant to find himself in, the Tribunal is not satisfied the possible end of his marriage will result in the applicant suffering significant harm, as defined in the Act, if he returns to India in the foreseeable future.

4. The applicant asked the Tribunal that he be allowed to remain in Australia for 2 or 3 years to work so that he can take money back to India. The Tribunal does not have the discretion to provide this for the applicant. It notes that the applicant has a [Qualification] and he has completed [courses] in Australia. It also notes he has employment experience, including professional experience in [Occupations 1 and 2]. It is satisfied that if the applicant returns to India in the foreseeable future he will be able to secure employment such that he will be able to subsist.

1. Having considered the evidence overall, the Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India there is a real risk of significant harm. He therefore does not meet the complementary protection provisions. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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).

DECISION

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…