1708431 (Refugee)

[2021] AATA 3972

1708431 (Refugee) [2021] AATA 3972 (20 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708431

COUNTRY OF REFERENCE:                   Philippines

MEMBER:Sheridan Lee

DATE:20 August 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2021 at 9:59 am

CATCHWORDS

REFUGEE – protection visa – Philippines – marriage to Australian citizen – death of spouse – no claims of persecution in the context of the refugee criteria – best interests of Australian citizen children – referred for Ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994

CASES
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FMCA 78
SZRSN v MIAC [2013] FCA 751

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 dependants.

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 7 April 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is [age]-year-old woman from the Philippines. She applied for the visa on 26 February 2015 on the basis that she would suffer harm as a result of separation from her Australian children. The delegate refused to grant the visa on the basis that there was no information to suggest that the applicant would be targeted on her return to the Philippines for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. Further, the delegate did not accept that there was a real chance of being subject to significant harm should she return to the Philippines.

3. The Tribunal viewed a copy of the applicant’s passport. I accept that the applicant is a citizen of the Republic of the Philippines and will assess the applicant’s claims against the Philippines as her country of reference for the purposes of s.5H(1)(a) and receiving country for Complementary Protection purposes.

4. The applicant appeared before the Tribunal via video on 18 August 2021 to give evidence and present arguments. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The applicant did not raise any concerns in respect of the hearing format.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. In accordance with Ministerial Direction No.84, made under s.499 of the Act, I have 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

11. The applicant first arrived in Australia [in] August 2013 on a Subclass 676 Tourist visa. She departed Australia [in] April 2014 and again arrived [in] April 2014. Her tourist visa expired on 6 August 2014 and the applicant remained in Australia unlawfully. She has been in Australia since that time.

12. The applicant married an Australia citizen in 2004 and the couple had two children, who are Australian by descent. The applicant’s husband passed away in 2013 after suffering from [a medical condition] for a number of years.

13. The applicant supplied the Tribunal with the following documentation in respect of her children. An Australian passport issued to [Child 1], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent. An Australian passport issued to [Child 2], date of birth [date] ([age] years of age), along with a birth certificate issued in the Philippines and a certificate of Australian citizenship by descent.

14. She also supplied a Certificate of Marriage between [Mr A] and [the applicant] issued by the Office of the Civil Registrar General in the Republic of the Philippines [in] 2004 and a Certificate of Death issued by the Australian state of Queensland for [Mr A] [in] August 2013.

15. Departmental records show that the applicant applied for a Contributory Aged Parent visa on 5 February 2015, however the application was deemed to be invalid.

    Application for protection

16. The application for protection form submitted by the applicant outlines that she was seeking protection on behalf of her two children who would have no one to look after them in Australia. The children are Australian citizens and were not included as applicants for the visa.

17. The application notes that when [Mr A] became ill, the couple applied for Australian citizenship for the children, which was granted. The intention was to apply for a spouse visa when the applicant arrived onshore. Unfortunately [Mr A] passed away two weeks after the family arrived and no application for a spouse visa was lodged.

18. The applicant claimed that if she was forced to return to the Philippines without her children, she would die of heart failure knowing that they would become wards of the state. She further alleged that the children had renounced their Philippine citizenship and even if they returned to the Philippines, the applicant would have no job to support them. The applicant alleged that the social security system in the Philippines is poor and they would not receive the same benefits as in Australia. Finally, the application form stated that the applicant did not experience any harm in her place of residence.

19. The applicant attended an interview with a delegate of the Minister. The evidence provided during the interview was consistent with the evidence presented on the application form.

    Application for merits review

20. The applicant supplied the Tribunal with a written statement, dated 10 June 2020. The statement requests that the Tribunal consider the application, despite an acknowledgement that the application does not satisfy the grounds for approval.

21. The applicant’s statement outlined that she married an Australian citizen, [Mr A], [in] 2004. The couple lived together in the Philippines and had two children, [Child 1] and [Child 2]. [Mr A] developed [a medical condition], which was diagnosed in October 2009. He travelled to and from Australia for treatment and the applicant remained in the Philippines with the children.

22. The applicant and her husband applied for Australian citizenship and passports for [Child 1] and [Child 2], which were granted. The couple then planned to apply for a spouse visa for the applicant. However, when [Mr A] travelled to Australia in 2013 his health deteriorated and he was no longer able to travel. The applicant and her children travelled to Australia to spend time with [Mr A] for his final days.

23. The applicant’s statement goes on to outline that following the death of her husband, she extended her visitor visa and remained in Australia with the assistance of friends and family. She searched for a visa that would suit her situation until she ran out of time and money. Eventually, the applicant’s visa expired and she remained in Australia unlawfully. The only remaining option was to apply for protection.

24. At the Tribunal hearing, the applicant gave evidence that she remarried in 2017, however the marriage had been struggling through the coronavirus restrictions. The couple have been helping each other out, but are not living together.

25. In the Philippines the applicant ran [a] business, working with [students]. In Australia, she is working [full-time].

26. The applicant believes that she has nothing waiting for her in the Philippines and wouldn’t know how to start again. The applicant’s parents and [siblings] remain in the Philippines. However, she noted that her parents are elderly and she sometimes sends money to assist with their health issues and her siblings are all married with their own families.

27. The applicant’s children do not wish to live in the Philippines. They don’t speak the language and they’ve made a life here in Australia. The applicant confirmed that if she was required to return to the Philippines her children would remain in Australia. I note that the applicant’s children were not included as applicants for the protection visa.

    Refugee criterion

28. The applicant’s claim relates to harm she would experience as a result of her removal from Australia. She has not claimed that she has or would be harmed by the Government of the Philippines or actors within it.

29. This does not amount to persecution in the context of the refugee criteria. Persecution must involve systemic and discriminatory conduct. In these circumstances there is no deliberate or discriminatory behaviour on the part of the Philippines or any individual within it.

30. Furthermore, I note that the applicant would not suffer the claimed harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. The separation from her children and any impact this might have on her health upon return is a situation specific to her individual circumstances.

31. 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).

    Complementary protection

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).

33. The types of harm that amount to significant harm for the purposes of complementary protection are exhaustively defined by s.36(2A). Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, they will be subjected to torture, or to cruel and inhuman treatment or punishment or to degrading treatment or punishment.

34. The Courts have confirmed, in SZRSN v MIAC and GLD18 v MHA, that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[1]

    [1] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–-[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58] .

35. The Court in SZRSN v MIAC noted the circularity in the operation of s 36(2)(aa) if the harm arose from the act of removal itself. Section 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of the removal strongly suggests that the removal itself cannot be the significant harm.[2]

    [2]         SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [64]. The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia: SZRSN v MIAC [2013] FCA 751 at [47].

36. The Court also had regard to the ‘intention’ requirements in the s 5(1) definition of degrading treatment or punishment. The Court reasoned that separation from family is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.[3]

    [3]         SZRSN v MIAC [2013] FCA 751 at [48] and SZRSN v MIAC [2013] FMCA 78 at [65].

37. Although the Court in SZRSN was largely focusing on degrading treatment or punishment, by implication its reasoning is equally applicable to the other types of significant harm in s 36(2A). The harm inflicted by the act of removal itself may result in separation from friends or family, or poorer living conditions, or lack of access to essential services. The risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

38. I accept that the applicant would suffer significant emotional stress as a result of separation from her children. Nevertheless, this would not invoke Australia’s complementary protection obligations for the reasons above. I do not accept that the applicant would suffer heart failure resulting from the separation. No medical evidence was submitted to either the Department or the Tribunal to substantiate that claim. I consider that the statement was an expression of the extreme emotional strain experienced by the applicant. Even if it were to be true, the deterioration of the applicant’s health would be a result of her separation from her children.

39. Although the applicant primarily raised financial concerns in respect of her ability to care for her children, I have considered her personal circumstances if returned to the Philippines alone. I note that the applicant speaks English and Filipino and has work experience in both Australia and the Philippines. No evidence was presented to suggest that the applicant would be prevented from securing employment or accessing social security on her return to the Philippines. While the salary or entitlements may be less by comparison to Australia, the conditions would not threaten her ability to subsist.

40. Further, I note that cruel or inhuman treatment or punishment does not include an act or omission that is not inconsistent with art 7 of the International Covenant on Civil and Political Rights: s 5(1). The Complementary Protection Guidelines refer to certain circumstances which will generally not be considered inconsistent with article 7. These include general socio-economic conditions and breach of social and economic rights.

    Ministerial intervention

41. Having regard to the applicant’s circumstances and having considered the ministerial guidelines relating to the Minister’s discretionary power under s 351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

42. The Minister’s guidelines list, through examples, those circumstances where a referral is appropriate and those which are not. In summary, appropriate cases are those involving unique or exceptional circumstances, strong compassionate circumstances, and situations where Australia would receive some exceptional economic, scientific, cultural, or other benefit from the person being permitted to remain in Australia.

43. In the current matter, the Tribunal considers that there are strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.

44. The applicant has two Australian citizen children currently aged [age range], who have been living and studying in Australia since 2013. Without intervention the children would likely remain in Australia without the support of their mother, who is the only parent they have left after the death of their father in 2013. The applicant’s son has undertaken counselling in the past due to general issues and grief with his mother.

45. Further, the case gives rise to circumstances that that may bring Australia’s obligations under the Convention on the Rights of the Child (CROC) into consideration, including the best interests of the child. The applicant’s children have lived in Australia for a significant period of time and use English as their first language. It would be difficult for them to adapt to life in the Philippines if forced to return. The applicant gave evidence that the social security system of the Philippines is poor and citizens do not have the same benefits that Australia provides its citizens. The applicant’s son has advised her that he will not return with her and would rather live on the streets. If they do not return to the Philippines and the applicant does, the children will be separated from their one remaining parent.

46. 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) nor is she a person in respect of whom Australia has protection obligations under s.36(2)(aa).

47. 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.

   Sheridan Lee
   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.

   …