1709684 (Refugee)

[2022] AATA 3197

1709684 (Refugee) [2022] AATA 3197 (11 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1709684

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:11 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 11 August 2022 at 4:18pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – lesbian – LGBTQI community in Malaysia – fear of torture – detention – conversion therapy – marriage in Australia – fear of detention – fear of physical assault – employment – state protection – decision under review remitted

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

CASES
Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

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

2. The applicant, who claims to be a citizen of Malaysia, applied for the visa on 5 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection by Australia.

3. The applicant appeared before the Tribunal on 3 August 2022 to give evidence and present arguments. The matter was heard together with the related review of [Partner A] and [Daughter A] (AAT proceeding 1726096) and the Tribunal received oral evidence from both of those persons as well as another witness, [Witness A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.

   Criteria for a protection visa

4. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

5. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

7. Under s 5J(1), 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.

8. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

   CONSIDERATION OF Claims and evidence

9. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

   Mandatory considerations

10. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. As at the time of the Tribunal’s decision, the relevant report is the DFAT Country Information Report Malaysia dated 29 June 2021.

11. The applicant was not interviewed by the delegate in respect of her claims. As a consequence the Tribunal has significantly more information before it as to the applicant’s claims than was available to the delegate. For the following reasons, the Tribunal has concluded that the decision under review should be set aside.

    Country of nationality

12. The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. She has at all times maintained that she is a citizen of Malaysia and she has been accepted as such by the delegate. The Tribunal finds she is a Malaysian citizen and has assessed her claims against Malaysia as her country of nationality and the ‘receiving country’.

    The applicant’s personal background

13. The applicant is [an age]-year-old woman of Tamil ethnicity and Hindu religion from Perak in Malaysia. She completed [school] in [year] before working as an assistant at a [business 1] and later as a team leader at a [business 2] for approximately 10 years.

14. She arrived in Australia [in] August 2016 as the holder of a Subclass 601 Electronic Travel Authority and has not departed since.

    The applicant’s claims for protection

15. In her protection visa application, the applicant claims that if she returns to Malaysia she will be harmed because she is a lesbian. She states that the LGBTQI community is treated very badly in Malaysia and that her parents and relatives avoid her. In a written statement lodged with the Tribunal, she states that she has been attracted to women since she was very young and her family realised she was a lesbian as she grew up and changed her appearance.

16. Her father threatened to report her to a rehabilitation centre, leading the applicant to hide her feelings until she left their home in her early twenties. DFAT reports that Malaysian authorities at both a state and federal level have promoted rehabilitation or re-education programs aimed at changing sexual orientation and gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011.[1]

    [1] DFAT Country Information Report: Malaysia 29 June 2021 at 3.136; 3.141

17. After leaving home, she declared her feelings to a colleague at work, who told her it was impossible that they would ever have a relationship and humiliated her in front of their friends. Shortly afterwards she left her job and moved to Australia, arriving in August 2016.

18. In December 2016, the applicant met her partner [Partner A] when [Partner A] came to stay in the same house in which the applicant was renting a room. The applicant and [Partner A] became close and by the middle of 2017 they had declared themselves to their friends and family in Australia to be in a serious relationship. They moved out of that house into their own house together with [Partner A’s] daughter, [Daughter A] and married two years later.

19. [Daughter A] gave evidence that she was aware of the relationship between the applicant and her mother prior to their marriage, but did not attend the wedding as she was sick at the time. She did, however, watch the ceremony on a video call. The marriage took place on the same date as that of a friend of the applicant and [Partner A], [Witness A], who married her own same sex partner at the same time. The applicant, [Partner A] and [Witness A] each gave evidence that they were the witnesses for each other’s weddings. [Witness A] gave evidence that she considered [Partner A] to be like her sister and had observed that the applicant really cared for [Partner A] and they truly love each other.

20. The Tribunal accepts the applicant and [Partner A] married in Australia [in] May 2019 as evidenced by the Australian marriage certificate produced to the Tribunal. However, as discussed with the applicant at hearing, I am doubtful about the legal effect of that marriage given [Partner A’s] evidence that she has not obtained a legal divorce from her former husband in Malaysia (noting that she considers herself to be religiously divorced according to the tenets of Islam). Nonetheless I accept the Australian marriage to be evidence of the genuine commitment between the applicant and [Partner A]. The applicant and [Partner A] currently live together in rented premises in [location] and address records held by the Department and the Tribunal indicate they have lived together at four addresses since 2017.

21. I consider the applicant to be a credible witness as to her experiences in Malaysia and as to her relationship with [Partner A]. Her evidence was also supported by the oral evidence of [Partner A], [Daughter A] and [Witness A].

22. In view of the written and oral evidence of the applicant and the witnesses, I accept the applicant and [Partner A] are in a committed same-sex relationship of approximately five years’ duration and that they have lived openly in that relationship since mid-2017. I accept their evidence that their relationship is known to all of their friends in Australia and [Partner A’s] former husband in Malaysia. I accept that the applicant has not told her own family in Malaysia for fear of their reaction. For these reasons I accept that the applicant is a member of the LGBTQI community.

    Fear of harm on return

23. In assessing the risk of harm to the applicant if she is returned to Malaysia as a member of the LGBTQI community, the Tribunal gives weight to DFAT’s advice that Malaysia is a conservative Islamic nation in which there is widespread official and societal disapproval of LGBTQI identities and behaviours. Adult same-sex acts are illegal regardless of age and consent in Malaysia, prohibited by both Malaysia’s Penal Code and numerous state-level syariah-based laws.[2]

    [2] DFAT Country Information Report: Malaysia 29 June 2021 at 3.134

24. Despite the general improvement in the human rights climate resulting from a change in government in May 2018, LGBTQI issues remain sensitive:

    ·Authorities at a state and federal level have promoted rehabilitation or re-education programs aimed at changing sexual orientation and gender identity, also known as conversion therapy. The Minister for Religious Affairs claimed in October 2018 that 1,450 people had ‘voluntarily’ taken part in outreach programs organised by JAKIM since 2011;

    ·In September 2018, Prime Minister Mahathir stated that Malaysia ‘cannot accept LGBTI culture’, while in March 2019 the Tourism Minister reportedly denied the existence of gay people in Malaysia;

    ·Longstanding official opposition towards the promotion of LGBTQI issues, which has continued under the new government, has hampered the effectiveness of NGOs and individuals working to advocate such rights within the framework of broader human rights advocacy;

    ·Since 1994 LGBTQI individuals have been banned from appearing on state-controlled media and media censorship rules ban movies or songs that promote acceptance of same-sex relationships;

    ·JAKIM and other religious authorities occasionally conduct raids on LGBTQI events. In August 2018 JAKIM raided a Kuala Lumpur night club popular among the LGBTQI community, arresting 20 men who were later ordered to undergo counselling for ‘illicit behaviour’, while a Minister issued a statement to the effect that he was hopeful the raid would ‘mitigate the LGBTI culture from spreading in our society’;

    ·In November 2019, the Selangor Syariah High Court convicted five men under syariah laws for attempting to conduct sexual relations ‘against the order of nature’ in a private apartment 12 months earlier. They were sentenced to six months’ imprisonment, caning and a fine. The judge reportedly made numerous prejudiced remarks during the case that were unrelated to the facts in issue;

    ·The Malaysian authorities promote rehabilitation or re-education campaigns aimed at changing sexual orientation or gender identity, also known as conversion therapy. There are reports that the Malaysian authorities will only permit LGBTQI persons with HIV/AIDS to access medical treatment if they can demonstrate they have ‘transitioned back to heterosexuality’;

    ·There is a strong social taboo against LGBTQI issues and persons, particularly amongst Muslims and many LGBTQI persons hide their identity to avoid harassment, familial ostracism and/or violence. Reports of violence by family members towards LGBTQI persons are common and Malaysian society generally places the blame for such violence on the victims, who are viewed as provoking it by identifying as LGBTQI;

    ·Contrary to the general trend of increasing online freedom, media and in-country sources reported a shrinking of space LGBTQI individuals online (and offline) in 2018 under the new government;

    ·In August 2018, the Minister for religious affairs announced a regulator would be established to monitor ‘LGBTI activity’ online. Although no official reports can confirm the establishment of such a regulatory body as at the time of publication, a number of international websites with LGBTQI-related content are blocked by the MCMC.[3]

    [3] DFAT Country Information Report: Malaysia 29 June 2021 at 3.134 – 3.143; DFAT Country Information Report: Malaysia 13 December 2019 at 3.106 – 3.107 and 3.130 - 3.141

25. In its most recent report DFAT advises that Malaysia is becoming less tolerant overall for LGBTQI people and worse than it was under the long-running BN government, due to the presence of the Malaysian Islamic Party (PAS) in the Perikatan Nasional governing coalition.[4]

    [4] DFAT Country Information Report: Malaysia 29 June 2021 at 3.137

26. Overall DFAT assesses that LGBTQI individuals face a moderate risk of both official and societal discrimination which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces and employment opportunities and/or familial or societal violence noting that these risks are higher for Malay Muslim LGBTQI individuals and those located in poorer and rural areas.[5]

    [5] DFAT Country Information Report: Malaysia 29 June 2021 at 3.147

27. In view of the DFAT advice and her own experiences in Malaysia, the Tribunal accepts there to be a real chance the applicant will face serious harm if returned to Malaysia because of her membership of the LGBTQI community.

    Is the harm feared for one of the reasons set out in s 5J(1)(a)?

28. It is well established that membership of the LGBTQI community in a given country can constitute a particular social group.[6] Having accepted that the applicant is in a same-sex relationship, I accept she is a member of the particular social group comprising the LGBTQI community in Malaysia. Therefore she meets the criterion set out in s 5J(1)(a).

    [6] Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.

29. In this case the applicant is a member of Malaysia’s Indian Tamil community who has a school-level education. I accept that in the past she has suffered harassment from her father who threatened to send her to a rehabilitation clinic and ostracism from other family members for reasons of her sexuality. I accept that if she were to return to Malaysia and live openly as a member of the LGBTQI community in Malaysia, there is a real chance she will be subjected to other serious incidents of harm including prosecution, online monitoring and harassment, ‘re-education’, exclusion from public spaces and employment opportunities and/or familial or societal violence. I accept such conduct would constitute serious physical harm and harassment and meets the definition of ‘serious harm’ contained in s 5J(5). Therefore the applicant meets the criterion set out in s 5J(1)(b).

30. As the perpetrator of harm in this case includes the Malaysian state, I accept that state protection is not available to the applicant and the real chance of persecution relates to all areas of Malaysia. Therefore the applicant meets the criterion set out in s 5J(1)(c) and s 5J(2).

31. I find that any modification of the applicant’s behaviour to avoid harm in Malaysia for reasons of her membership of the LGBTQI community in Malaysia would conflict with a characteristic that is fundamental to her identity or conscience or conceal an innate or immutable characteristic. Therefore she cannot be required to take steps to modify her behaviour, such as by returning to Malaysia and living discreetly or ending or hiding her relationship with [Partner A], so as to avoid the feared persecution pursuant to s 5J(3).

32. I find the applicant’s membership of the particular social group of persons in same-sex relationships in Malaysia is the essential and significant reason for the harm feared, that it involves serious harm and that it involves systematic and discriminatory conduct. Therefore the applicant meets the criterion set out in s 5J(4).

33. For these reasons I accept the applicant has a well-founded fear of persecution for reasons of her membership of the particular social group comprising the LGBTQI community in Malaysia if she returns to that country, now or in the reasonably foreseeable future.

34. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    decision

35. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act 1958 (Cth).

    Alison Murphy
    Member

    
    

    Attachment  -  Extract from the 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.

    …