1712928 (Refugee)

[2022] AATA 4053

1712928 (Refugee) [2022] AATA 4053 (25 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Michele Ann Clayton (MARN: 0957773)

CASE NUMBER:  1712928

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Mara Moustafine

DATE:25 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2022 at 10:07am

CATCHWORDS
REFUGEE – protection visa – Fiji – original claims of fear of harm from government, military and police, and socio-economic conditions – later claims of family relationship with anti-government protestor and husband being targeted by police – land and title disputes – credibility – vague, inconsistent and implausible claims and evidence – no past harm – multiple travel on own passport – husband’s separate protection visa application refused and affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

   Background

2. The applicant is a citizen of Fiji and is [Age] years old. She first arrived in Australia on a multiple entry Visitor visa (subclass 600) [in] September 2016. She departed for Fiji [in] November 2016 and returned to Australia [in] April 2017. The applicant applied for a protection visa on 12 May 2017.  

   Evidence before the Department

3. According to her Protection visa application form, the applicant was born on [Date] in Suva, Ra province, Fiji. She identified her ethnicity as Fijian, her religion as Methodist and her occupation as [deleted]. She speaks, reads and writes in Fijian (Bauan) and English and completed High school in [Year]. The applicant was married in 1988 in [Town], where she lived until she came to Australia. She indicated that she has two daughters outside Australia, as well as a cousin brother and cousin sister in Australia. She stated that she left Fiji legally [in] April 2017 using her own passport issued [in] 2016, a copy of the biodata pages of which was submitted with her application.

4. In summary, the applicant’s protection claims, as set out in her application form, were as follows:

   a.She came to Australia with two family members and decided to apply for protection as it’s the only visa to apply for.

   b.It is very difficult to survive back in Fiji because everything is being controlled by the government, there is very high unemployment and mass termination has destroyed family and village set ups.

   c.She experienced harm in Fiji as ‘harm is everywhere no work is harm’.

   d.If you are member of the army, police force and involved in a family dispute, someone’s killed then you cannot take them to court. If you die for any mistreatment then there is no protection, as the authorities have legalised everything in their favour.

   e.You cannot relocate to any other part of the country as the government controls all areas and due to the introduction of the village law.

5. On 15 June 2017, the delegate refused to grant the applicant’s Protection visa as she was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion.

   Protection Visa Application

6. On 19 June 2017, the applicant applied to the Tribunal for a review of the Department’s decision. The applicant was represented in relation to the review.

   Pre-hearing submissions

7. On 4 April 2019 the applicant’s migration agent provided to the Tribunal a statutory declaration from the applicant dated 12 January 2019, in which she made the following claims:

   a.    She is worried about her relationship with [Mr A], who has been posting material against the Fijian government, protesting and causing annoyance to Frank Bainimarama. She knew him as a cousin brother and neighbour when she was young. She had not seen him since the 1970s but learned he was in Australia and became Facebook friends.

   b.She is most worried about the government in Fiji. She sits and listens but doesn't want to be involved in it because she thinks they will take her up to the military for talking about the government. But she can't always stay quiet when they were taking their land and harming them, like taking her husband or their village land.

   c.She is afraid that because she is married to her husband the police may involve her in his old cases relating to a fire at a [Building] and the killing of a [Person] as she thought police had targeted him for this a long time ago.

   d.She claims her family’s land was taken back in the 1980s and 1990s and fears that if they return to Fiji now, they will be involved in land disputes in her husband’s village, where he is part of the mataqali and that the housing authority might take and sell her deceased parents’ house as the title has not been properly transferred to her.

8. On 2 September 2022 the applicant’s migration agent submitted a statutory declaration from the applicant dated 31 August 2022 stating that she continued to maintain the claims made in her statutory declaration of 13 January 2019 and did not wish to make any further points. Also submitted were copies of her previous statutory declaration, some notes and background information relating to the cases of the applicant and her husband and copies of the US State Department Fiji 2020 Human Rights Report and the DFAT Fiji Country Information Report of 20 May 2022.

   The Hearing

9. The applicant appeared before the Tribunal by video conference from [City] NSW on 8 September 2022 to give evidence and present arguments. By agreement with the applicant and her husband, whose case (1712931) was being heard by the same Tribunal Member on the same day, swearing in and preliminaries were conducted with both applicants jointly and their cases were then heard individually. Although the applicant nominated her husband as a witness, he did not give evidence at the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

10. At the start of the hearing the applicant confirmed that all evidence he had submitted to the Department and Tribunal was true and correct. The Tribunal discussed with the applicant her background in Fiji, her reasons for leaving and why she fears returning there. Where relevant to her protection claims, the applicant’s evidence to the Tribunal is referred to below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

11. 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.

12. 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.

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

14. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

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

    Mandatory considerations

16. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

17. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.

    Analysis, Findings and Reasons

18. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

19. The applicant’s key claims are that she fears returning because she may be questioned about events that happened to her husband in the past relating to a fire at a [Building] and the murder of a [Person], and the failure of the authorities to transfer the title of her deceased parents’ property into her name.

20. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to the applicant’s vague, inconsistent and implausible evidence on key aspects of her claims and other reasons detailed below. 

21. The applicant told the Tribunal at hearing that she initially came to Australia for a funeral, returned home then came back and decided to apply for a Protection visa because she wanted to stay and work in Australia. Since then, she has been working in a [Workplace] in [City].

22. The applicant told the Tribunal at the hearing that she had never suffered serious harm in Fiji, never had problems with the military or police, was not involved in politics or and never participated in protests. Nor had she ever had problems with the authorities when departing or returning to Fiji.

23. Asked why she was afraid to return to Fiji now, the applicant responded vaguely, saying she feared the military or police might come and ask her questions about ‘this and that’, what happened about her husband or what she had been saying. She claimed this was because they still had the records about her husband and might question her again. Asked when she had last been questioned by police, the applicant said it was in the 1980s and that police came to ask her about what happened at the [Building] and when the [Person] was killed in 1985. She said she didn’t know what happened but was supporting her husband. When the Tribunal pointed out that, according to her application form, she only married her husband in 1988, the applicant said they were already together by that time. She confirmed that she had never been questioned by police since that time and nor had her husband.

24. Nevertheless, the applicant repeated that she was afraid to return to Fiji as ‘they’ might know she was coming back and stop her at the airport because her records were still with the police because of her relationship to her husband. Asked if her husband had a criminal record or ever had charges laid against him in Fiji, the applicant said no. She also confirmed that her husband was never involved in politics or had a political profile.

25. As discussed with the applicant, the Tribunal finds it implausible that, on her return to Fiji, the police would come to question her about events that allegedly took place in the 1980s, when she had not been questioned about them since that time, including when she last returned to Fiji from Australia. It considers speculative the applicant’s response that the police must be keeping old files and could come around again and ask her about the incidents ‘because in Fiji they always keep some things like that so they can go over it’.

26. The applicant also claimed at the hearing that feared returning to Fiji because she had been unable to change the title on her property in Suva from her parents’ name to her own, even though her parents had passed away. She said her family leased the land which was owned by the housing authority and her daughters were living on the property on which she continued to pay the rates. The applicant claimed that before she came to Australia, she tried to have the title transferred to into her name. However, the housing authority had failed to action this, and it was still in her parents’ name. 

27. The Tribunal commented that while this may be the result of inefficient bureaucracy, it was unclear as to how it constituted serious harm for the applicant. The applicant responded that it was serious harm because she might go back to Fiji and they might take her house. The applicant then raised the issue of her parents’ land being taken in [District] in the 1970s when she was about [Age] years old.  However, she did not respond when asked how this constituted serious harm to her if she returned to Fiji.

28. The Tribunal discussed with the applicant its concerns about inconsistencies between her original Protection visa application and her evidence to the Tribunal in her statutory declaration and at hearing. In her Protection visa application, she made no specific claims and referred only to the general difficulties of living in Fiji. By contrast, in her evidence to the Tribunal she introduced claims relating to her husband’s issues with police over an alleged fire at the [Building] and killing of a [Person], as well as about her property and her parents’ land. This suggested that the applicant may have fabricated this evidence in an attempt to strengthen her claims after the Department refused her Protection visa application. The applicant responded that she just answered the questions she was asked.

29. Asked if she feared returning to Fiji for any other reason, the applicant said she was scared to go back with what was happening in Fiji now – houses were being burned and there were murder cases.  There was nothing else.  The Tribunal finds this claim inconsistent with country information in the latest DFAT report that Fiji was generally stable and secure and crime rates were generally low[1].

    [1] DFAT, DFAT Country Information Report Fiji, 20 May 2022, p.11

30. She did not pursue the claims in her statutory declaration about potential harm to her arising from her family relationship with online anti-government activist [Mr A] or from things she may have said about the government.   

31. In light of the findings above and, noting the applicant’s evidence that she never suffered harm in Fiji and decided to apply for a Protection visa because she wanted to work in Australia, the Tribunal is not satisfied that the applicant faces serious or significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.

32. The Tribunal accepts that the applicant would prefer to live and work in Australia rather than return to Fiji. As discussed with the applicant, it is the Tribunal’s view that her claims for protection have been contrived to achieve a migration outcome. The applicant made no comment on this point when invited to do so.

    Does Australia have protection obligations to the applicant under the refugee criterion?

33. Having considered all of the applicant's claims, individually and cumulatively, all the evidence and in view of the findings above, the Tribunal finds that there is no real chance that the applicant will suffer serious harm for any other reason set out in s.5J(1)(a) of the Act if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that she does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary      protection criterion?

34. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether she may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

35. In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if she returns to Fiji now or in the reasonably foreseeable future.

36. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.    

37. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that she does not satisfy the criterion in s.36(2)(aa) of the Act. 

    CONCLUSIONS

1. 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).

2. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

3. 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

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

   Mara Moustafine
   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.

   …