1706658 (Refugee)

1706658 (Refugee) [2019] AATA 6492 (29 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1706658
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Anne Grant
DATE:29 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 October 2019 at 1:48pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – attacks and threats by money lender – bribery by police – fear of persecution not well founded – no real risk of significant harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 499
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 21 March 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 25 November 2016. The delegate refused to grant the visa on the basis that they were not satisfied that he would be persecuted in Malaysia for one or more of the reasons mentioned in s.5J(1)(a) of the Act. The delegate also found that the applicant would receive effective protection from police and judiciary in Malaysia against any threats they face from groups, gangs or anyone else in Malaysia.
CRITERIA FOR A PROTECTION VISA
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.
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).
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.
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
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.
WRITTEN AND ORAL CLAIMS
In his written application for protection, the applicant claimed that:
·He was in debt and owed money from a money lender because his salary wasn’t enough. He had to support his mother and siblings as the breadwinner in the family. He has to pay bills and house expenses and car loan and other bills too. He could not cover the monthly payment. He couldn’t pay the money lender charging him daily interest so he decided to save his life and come to Australia.
·If he returned to Malaysia, he will get caught and be tortured or even killed by them. His life is in the great danger if he returns to his home country. This harm will continue until he fully paid the debts and interest.
·He experienced harm in Malaysia as he was beaten on his face and kicked in his stomach by them.
·He did not make a police report because he was afraid and flew to Australia. Authorities consider it a personal matter and they do nothing even if they seek help from them.
·He did not move prior to coming to Australia. He was unable to relocate because he believes the loan shark company has informers everywhere. They will catch him one day.
·He does not think the authorities could save his life.
The applicant applied for review on 31 March 2017. On 3 July 2019, he provided a letter to the Tribunal in which he included the following information:
I am writing to appeal my protection visa so that I can stay and work longer in Australia. I have been here since [August] 2016, the reason of my stay extended because back at my home town I am facing some issues one of it is I owing money from a person. Due to my minimal salary I have to borrow money to survive and help my single mother. I need more time to pay back but since is a overdue payment this person come compel and harass me to pay, I didn’t make a police report because this person I owe money from is not a registered company.
Besides that I have been working for the former company for more than 4 years in Malaysia, my employer didn’t see my work performance, still remain on the same level no improvement or promoted and being racist.
On top of that I been frame by the unknown person and arrested by the authority in one night on the way back home, they stop my car and inspect and found marijuana’s in my car, this stuff I use if for my own self. So that night the authority demanded RM[amount] otherwise I will be arrested and go behind bars. With the limited of times and short of money, I have to borrow money to some people to pay the authority before the time given is ended.
Once payment is made on the night itself, the authority let me go and I return home frighten they would come back and demanded more money and disturbing the family member which is they did come to my house and my work place looking for me for weeks. In fast decision I decided to go abroad and move my mother to a safer place to my [sibling] house.
After all this happen I have decided to go abroad to make a living, work and make some saving to continue support my family which is my single mother and free myself from the people who harass me. I just need more time to save up money in order to settle my debts.
Ever since I touch down in Australia, I fall in love with the country and the society its giving me the inspiration to become a man with full responsibility and successful person so that I could contribute my service to the country, family and hoping one day I’ve been granted a PR with God willing.
While I am here I looking and searching for a job and I got it and thank god I am happy with my pay that can help me to survive till today and I can help my family.
In the same time, I have submitted all the documents that you require to apply for the protection visa and seek for the government protection so that I can stay and work in Australia.
I have good travel history since I’ve been here and looking after myself avoiding from getting myself into any trouble because my intention of coming to Australia to seek protection and move on with my life and make a living here in order to survive and help the family back in hometown.
The applicant attended hearings on 3 July 2019 and again on 1 October 2019. On 1 October 2019, due to an oversight, an interpreter was not booked in person and the hearing commenced with a telephone interpreter in the English and Malay languages. However, she was only available for a limited time. Consequently, the applicant returned for a continued hearing on 24 October 2010. That hearing was assisted by an interpreter in the English and Malay languages. In his evidence before the Tribunal, the applicant said (in summary) that:
·He departed Malaysia in 2016 because he had been working for five years and wasn’t earning enough money. He was helping his single mother and [siblings] and the income was not enough for him. He heard it was easy to get a better job and make a living in Australia.
·He purchased a house in 2015 with his [sibling].   This was the family home, and he lived there on his own before leaving Malaysia. They borrowed from a bank. The house is in Kota Kinabalu. The applicant also had a car loan.
·He borrowed the money in 2016 from a money lender to meet his house and car bills in around March or April. He got into trouble after about three months.    He had tried to pay his debts before leaving Malaysia but made not much progress. He got harassed by the money lenders who demanded he pay up. He was worried they may hurt him or his family. He moved his mother to his [sibling]’s house- [she/he] lives in Kota Kinabalu also.
·When he was late by a few months, the money lenders came and said he needed to pay half of the money otherwise it was ‘not good for him’. This happened a few times.   They came to his workplace, spoke roughly to him, warned him to pay early. They went to his house and scared his mother.   They did not assault him or his family.
·The applicant said that he didn’t report it to police but later said that he made an ‘informal report’ and they told him ‘they needed evidence’.
·A few months before he left Malaysia, he travelled to stay with a [sibling] in [Selangor].
·The applicant told the tribunal that he was no longer in fear of harm from the money lenders, because he has managed to reduce the debt by more than half from his earnings in Australia. He only owes around [amount]MR currently and it is ‘no longer a problem from the money lender’ if he returns.
·In relation to his being ‘framed’ by police, that was when he was in Selangor for 4 months living with his [sibling] before coming to Australia. It was not so much a ‘frame up’ as a ‘dob in.’   The marijuana was for his own use but he does not know who tipped off the police – he thinks that perhaps it was the dealer.    The police offered to let it slide if he paid them. So he did.
·If he returns to Malaysia, he would prefer to live somewhere near family, either Selangor or Sabah.   He fears the police in Selangor will renew their demands for corrupt money or arrest him.   The applicant confirmed that the police have been seen near his [sibling]’s house a couple of times but have not ever approached [her/him] to ask about him. There are no outstanding matters against him because of the drugs but he is fearful that it might ‘start again.’
·The applicant had mentioned that racism was a problem in Malaysia. I asked the applicant what ‘racism’ he referred to in Malaysia and why that was a concern for him. He responded that there is some anti-Sabah racism in Selangor (where the accent is different to his own) and he would rather not be stressed by that. He said it is not really a concern but it affects his capacity to ‘fit in’ there. He agreed that he found work there whilst living with his [sibling].
·He considers it may be difficult to find work in Sabah. When he was in Selangor, he worked in a hotel. He agreed that he could live and work throughout the country but would prefer to be near family.
·The applicant agreed that not all police in Malaysia are corrupt and also with my noting that the country information reflects a number of police operations (including some in Sabah) in recent years, aimed at taking action against money lenders who use violence to recover money. He agreed that if he got into trouble in the future with the money lender, he could seek support from police and protection from violence.   He responded that he would rather stay in Australia.
No documents have been provided by the applicant in support of the loans or his financial situation.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this case are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
Taking into account the applicant’s evidence as a whole, I accept that he borrowed money from an illegal money lender in Malaysia and that he had some difficulty maintaining the loan to the lender’s satisfaction. I accept that he and his mother faced demands which may have suggested he would come to harm if he didn’t pay when he defaulted on his loan; and that he was fearful that the moneylender might resort to violence. Based on his evidence at hearing, I do not accept his written claims that he or any member of his family was ever attacked or physically harmed by the moneylender. Based on his evidence, I do not accept that a fear of serious harm from the money lender was the reason the applicant left the country or that there is a real chance that he will face serious harm from the money lender on return. As put to him at hearing, I consider that his own evidence suggests rather that he overcommitted himself financially and was not making enough money to resolve his financial problems and came to Australia to earn money to remedy that situation, not because he was in fear of harm. The applicant agreed with this proposition when it was put to him. He also stated that he is no longer concerned about the money lender ‘problem’ because he has substantially repaid the debt.
I do not accept the applicant’s claim that there is a real chance of him suffering harm from the money lenders if he returns to Malaysia, now or in the reasonably foreseeable future. Even though he gave evidence that he is no longer concerned about the debt, I have considered whether, if he fell into arrears again in future, he might face serious harm. Taking into account his own evidence about what actually happened to him and his family before he came to Australia and the lower amount of the outstanding debt, I am not satisfied that he would. I also note that he considers that he now has no such risk as he has ‘got on top of’ his financial situation in his time in Australia, and also that he could go to the police if the moneylenders did become threatening or aggressive. Based on his evidence before me, I do not accept that there is a real chance that the money lenders will cause him or his family serious harm in Malaysia, even in the event that he falls behind in his payments in the future.
In relation to his encounter with police, I accept that shortly before he left the country, he was intercepted by police in possession of marijuana but was never charged with any offence after he paid a bribe. Based on his evidence at hearing, I do not accept that Police have ever questioned or approached his [sibling] about him or his whereabouts since he left the country, though [she/he] may have seen police in the vicinity on one or two occasions. I am not satisfied that he has established that the police have exhibited or maintain any current interest in him at all. I do not accept that them being observed nearby to his [sibling]’s home is plausibly linked to the applicant. After considering the provisions of s.5J(5) which outlines instances of serious harm, I do not accept that the applicant’s one encounter with police in 2016 and paying a bribe amounts to causing the applicant serious harm. He was not subjected to assault, lengthy unlawful detention, or to any other harm apart from a financial penalty – and one which did not cause him significant economic hardship which threatened his capacity to subsist. He continued working until he left the country. I consider that even if it were to happen again, the applicant’s experience suggests that he would face a similar inconvenience and penalty and that this would not amount to causing him serious harm.
For the reasons given above, I do not accept the applicant’s claim that there is a real chance of him suffering harm (serious or not) from the Police or authorities in Selangor because of his being found in possession of cannabis in 2016 and paying a bribe to the police. I do not accept, based on his evidence, that the applicant is of any current interest to police in Selangor or throughout the country because of that incident or that he faces a real chance of suffering harm due to the previous drug incident, now or in the reasonably foreseeable future.
I accept that there is plausibly some ‘anti-Sabah’ racism in Selangor which might cause him difficulty settling in. However the applicant’s history does not support a finding that he would face any more than low level inconvenience and adjustment difficulties. In reaching that conclusion, I have taken into account his evidence that it ‘was not really a concern – but it does happen sometimes’ and that his [sibling] is there, and he previously found work within a short space of time. Even if he did encounter some local resistance to him because of his being from Sabah, I am not satisfied that he has established that it would be more than low level, non-invasive resentment. I do not accept that such resentment would amount to causing the applicant serious harm. I do not accept that there is a real chance that the applicant will suffer serious harm in any part of Malaysia due to ‘racism’.
I have considered the applicant’s claims cumulatively and individually. I do not accept his claims that there is a real chance of him suffering serious harm from money lenders, from corrupt police in Selangor, (or Police anywhere else in Malaysia) or from ‘racist’ locals in Malaysia who dislike or resent people from Sabah. I find that his fear of persecution in Malaysia is not well-founded. The applicant did not raise any other claims. I conclude that the applicant is not a refugee as described in s.5H(1) because he does not have a well-founded fear of persecution in Malaysia.
Complementary Protection
The applicant fears that he will be arrested, harassed by police to pay a bribe to avoid prosecution, (or alternatively that he will be prosecuted for drug offences) and that he will be the subject of racism in Selangor if he returns to Malaysia. He also claimed that he feared being beaten or killed by moneylenders, but has now acknowledged and I have found that he has paid back most of that debt, and is no longer at risk of harm from moneylenders. He also expressed concern about finding work in Malaysia.

According to s.36(2A), a non-citizen will suffer significant harm if he will be arbitrarily deprived of his life, the death penalty will be carried out on the person, they will be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment. I refer to my discussion of his claims above. I do not accept his claims that there is a real risk of him suffering significant harm if he returns to Malaysia from police, moneylenders or racist community members. Based on his life experience and his demonstrated capacity to locate and maintain work, (including in Selangor) I do not accept that he will have difficulty finding work or that even if he did, such a difficulty would amount to causing him significant harm as defined in s.36(2A). I have carefully considered the applicant’s claims both individually and cumulatively. I am not satisfied that the evidence before me establishes that there are substantial (or any) grounds for believing that the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed to Malaysia. He does not satisfy the criteria in s.36(2)(aa).
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
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.
…

[2019] AATA 6492

29 October 2019

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