1714844 (Refugee)

[2023] AATA 2498

1714844 (Refugee) [2023] AATA 2498 (1 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1714844

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Tania Flood

DATE:1 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2023 at 3:04pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – capacity to subsist – difficulty in finding work due to gender and education – previous overstay, student visa cancelled and period as unlawful non-citizen – young child born after application for review made and bridging visa cancelled – mother and sisters living in local area and earning money by small trading – country information – general security – decision under review affirmed

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection (the Department) on 13 June 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 Vietnam applied for the visa on 24 November 2016. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.  

3.    The applicant appeared before the Tribunal on 31 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese 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.

1. 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.

1. 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

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

CONSIDERATION OF Claims and evidence

10.    The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

11.    The Tribunal has before it the Department and Tribunal files.

12.    The Department file contains a copy of the applicant’s Protection visa application, bio-page of foreign passport for the applicant, and a copy of the delegate’s decision record.

13.    The Tribunal file contains a copy of the application for review form and a copy of the delegate’s decision record.

Migration history

14.    Departmental records indicate that the applicant was granted a Student (TU 573) visa on 18 March 2013. The applicant first arrived in Australia [in] March 2013. It was found that the applicant did not commence her course on 16 September 2013. Her visa was therefore cancelled on 18 February 2014. The applicant continued to reside unlawfully in Australia.

15.    The applicant lodged a Protection visa on 25 November 2016 and a Bridging visa associated with that application was granted on 2 December 2016. On 13 June 2017, the Protection visa was refused. The applicant applied for review of the refusal on 11 July 2017 and a Bridging visa associated with that judicial review was granted on 5 November 2019. Further Bridging visas were granted on 10 January 2020 and 19 February 2020. However, a further Bridging visa was cancelled according to s 116 of the Act on 12 August 2020.

Applicant’s background

16.    In her application for a Protection visa, the applicant provided the following information. She is a fluent speaker, reader, and writer of the Vietnamese language. She does not identify with any religion. Her parents and [number of] sisters reside in Vietnam. She completed her schooling in Vietnam. She declared she arrived in Australia as the holder of a Student visa in March 2013. She declared she had previously overstayed an Australian visa.

Applicant’s statement of claims

17.    The applicant provided the following information in her application for a Protection Visa. She was born and raised in Vietnam. [In] March 2013, she left Vietnam to study in Australia, encouraged by her parents. She stated that she did not want to be confined to her role as a woman in Vietnam; she wanted to be financially independent and did not want to work in her family’s business as it is the tradition and expectation.

18.    The applicant claimed that if she were to return to Vietnam, she would need to live with her parents and will struggle to find work due to her education and gender.  She states she would be required to work for her family’s business and attend to “family duties”.

19.    The applicant stated that she would also be belittled, discriminated against, isolated, bullied and suppressed. 

20.    The applicant stated that it is a personal matter and that the authorities will not protect her.  She said she could not relocate due to lack of resources.

The Delegate’s Decision

21.    The delegate found that the applicant had not provided any information or evidence to indicate that she had suffered a degree of harm amounting to serious harm as defined in s5J(4)(b) and subsections 5J(5) of the Act. Nor that she feared a degree of harm that amounted to serious harm as defined in the Act.

22.    The delegate was not satisfied that it could be concluded that the applicant’s motives, in the absence of any further information, amounted to a fear of serious harm.

The Tribunal Hearing

23.    The following is a summary of the applicant’s oral testimony given during the hearing and her responses to issues discussed with her by the Tribunal:

24.    The applicant stated that she was born on [date] in [location], Bo Trach, Quang Binh Province. 

25.    The applicant stated that she is a citizen of Vietnam and has no right to enter or reside anywhere else.

26.    The applicant stated that prior to her departure from Vietnam she was living in her hometown with her mother.  She said her father passed away more than ten years ago.

27.    The applicant stated she has [number] married sisters.  They live with their husbands and children in the same village as her mother.

28.    When asked whether her mother works she replied that she sells agricultural products.  Later in the hearing she said her mother is no longer working. 

29.    The applicant stated that her married sisters also engage in small trading activities for income.

30.    The applicant confirmed she remains in contact with her family members in Vietnam.

31.    The applicant stated that she completed year 12 in Vietnam.  She said she commenced a course of study on arrival in Australia but did not complete it as her mother could not continue to support her financially.

32.    The applicant stated that she never worked previously in Vietnam.  In Australia she does a variety of jobs including [job] and working in a [workplace].

33.    The applicant attended the hearing with a young child whom she stated is her [age]-year old child who was born on [date].  She said she separated from the child’s father about a year ago and he no longer has contact with their child and does not provide her with financial assistance.

34.    The applicant stated she has no religion.

35.    The applicant stated that she came to Australia in 2013 to study.  She claimed no other reason for departing Vietnam.

36.    The applicant stated that she suffered no past harm in Vietnam but noted that her family was affected by natural disasters.  Later in the hearing she said she was bullied and ostracised and hit by her classmates at school.  When asked why she replied that she did not know.

37.    The applicant stated that she fears being unable to support herself and her child if she returns to Vietnam.  She also stated that she would be unable to afford health care. The applicant stated that she has only completed high school and has no work experience in Vietnam and the unemployment rate is high. 

38.    The Tribunal put it to the applicant that she may be able to work alongside her mother in her business if she returns to Vietnam.  She then said that her mother is not working as she lost everything after severe storms struck the area.  When asked why she previously stated that her mother was working she said she thought she was first asked what her mother was doing after her father passed away.  She said her mother is currently relying on food assistance from her eldest sister. 

39.    When asked if the applicant could live with her mother and/or rely on support from her sisters in the short term she said she would not want to put pressure on her mother.  When asked if she thinks her family will reject her if she returns to Vietnam she said she thinks they will because she will be a burden to them.  She said her sisters cannot afford to help her as they have their own families to care for.

40.    The Tribunal put it to the applicant that country information indicates that health care is available to citizens throughout the country in health centres and hospitals, albeit with a co-payment requirement.  The applicant agreed but said the cost of health care would still be beyond her means.  She claimed that her father’s death was attributable to the poor quality of health care in Vietnam. 

41.    The Tribunal put it to the applicant that any discrimination she might encounter in employment on account of her gender would not likely give rise to a finding that she would suffer persecution in Vietnam.  The applicant replied that she fears she will be discriminated against in employment and she fears for her child’s future.

42.    When asked if she fears returning to Vietnam for any other reason she said she would also fear for her security in Vietnam.  She said there are a lot of abductions, traffic accidents and security in the community is not good.   The Tribunal discussed with the applicant country information which indicates that Vietnam is generally quite safe in terms of violent crime and while organised crime does exist the day to day lives of most Vietnamese people are unaffected.  The Tribunal also noted that country information indicates the police are a visible presence around the country.  The applicant replied that according to her knowledge the country is not secure.

43.    The applicant also stated that she fears being affected by natural disasters which occur in her home area.

FINDINGS AND REASONS

44.    Attached to the Department’s file is a copy of the applicant’s Socialist Republic of Vietnam passport which verifies her claimed identity and nationality.  Based on this documentation and in the absence of any information to the contrary the Tribunal finds the applicant is a national of Vietnam and has assessed her claims against Vietnam.

45.    The main claim advanced by the applicant is that she will be unable to secure an income sufficient to care for herself and her child if she returns to Vietnam.  She said this would be because of her low education, lack of work experience and her gender.

46.    The Tribunal has had regard to the latest DFAT report for Vietnam[1] which notes that while discrimination against women is banned by the Vietnam Constitution women form the majority of the working poor, earn less income and have fewer economic and employment resources than men do.   Women in Vietnam have also been reportedly fired for becoming pregnant and can have difficulty finding employment if they are over 35. 

[1] DFAT Country Information Report, Vietnam, 11 January 2022.

47.    Based on this information the Tribunal accepts the applicant may experience some gender discrimination and encounter some difficulties finding employment due to her age, particularly in the formal sector, if she returns to Vietnam.  However, she was educated to year 12, speaks Vietnamese fluently and has gained a variety of work experience in Australia.  While she maintained late in the hearing that her mother is not working the Tribunal is not prepared to accept this based on her initial testimony that her mother makes a living by selling agricultural products.  The Tribunal was not persuaded by her explanation for this discrepancy and considers her second response was given in an attempt to overcome the concerns put to her by the Tribunal.  Further, based on her oral testimony, her [number] sisters are also earning some income through small scale trading activities.  The Tribunal considers the same opportunities would likely be available to the applicant if she is required to return to Vietnam. 

48.    While the Tribunal accepts the applicant’s income earning potential will not be equivalent to that which she might enjoy in Australia it is not persuaded on the available evidence that she will be unable to subsist or raise her child due to having no income earning opportunities open to her.  In forming this view the Tribunal also notes that the applicant’s mother and [number] sisters are living in her local area.  While she claimed she would be unable to live with her mother or expect any support from her sisters there is no evidence before the Tribunal to support this other than her speculations.  Notably the applicant informed the Tribunal that she remains in contact with her family members in Vietnam and the Tribunal is not persuaded that they would reject or abandon her if she is required to return to Vietnam.  The Tribunal considers the applicant will have a degree of familial support available to her while she establishes herself financially in Vietnam. 

49.    As to her claimed inability to access health care, the Tribunal notes DFAT’s[2] reporting indicates that economic growth and urbanisation have increased the quality and availability of health services for most Vietnamese through a health centre and hospital network throughout the country.  While quality and access reportedly vary from place to place and health care is not free as a co-payment is required,[3] there is no evidence before the Tribunal to support that the applicant would be denied access to health care for a refugee reason or that any limitations on quality and access are the result of any intention by the state to cause harm to its citizens.   While the Tribunal accepts the applicant may not have access to the same standard of health care in Vietnam which she enjoys in Australia, it remains of the view that she will have an ability to access a modest income in Vietnam which will enable her to access basic health care.

[2] Ibid.

[3] Ibid.

50.    The applicant also claimed in her application for a Protection visa that she will be belittled, discriminated against, isolated, bullied and suppressed if she returns to Vietnam.  When discussing this with her during the hearing she referred to her past experiences in school and said that she still fears such behaviour.  The applicant did not particularise any harm she might suffer in future of this kind and as discussed with her during the hearing, her experiences as a child are likely to be quite different to that of an adult.  In any event, the Tribunal found her testimony in this respect to be somewhat speculative and unconvincing. 

51.    The applicant also claimed at hearing that she fears harm in Vietnam on account of the security situation.  As discussed with her during the hearing the country is reportedly generally safe in terms of violent crime and police are a visible presence around the country.  Whereas organised crime does exist and involves human trafficking, prostitution, extortion and drug activities, the day to day lives of most Vietnamese are reportedly unaffected.  The applicant gave no examples of past harm to cause her to fear this type of harm in the future and there is nothing before the Tribunal to indicate she would be particularly vulnerable to crime.  Again, the Tribunal found her evidence in this respect to be lacking in detail and speculative at best.

52.    The applicant also claimed to fear the effect of natural disasters which occur in her home area of Vietnam.  As discussed with her during the hearing, any harm flowing from such disasters is harm which would be faced by the population generally, would not involve systematic and discriminatory conduct directed at her and would therefore not amount to serious or significant harm.

53.    The Tribunal accepts the applicant has lived apart from her family in Australia for several years and has embraced an independent lifestyle here. The Tribunal accepts she may not wish to live a life constrained by ongoing traditional views about women and family.  However, based on the available evidence the Tribunal is not satisfied that any adjustments she may need to make to her chosen lifestyle, such as living with her mother again, at least initially, or attending to family duties, would amount to her suffering serious or significant harm. 

54.    Having considered the applicant’s claims individually and cumulatively and for the reasons outlined above, the Tribunal is not satisfied that there is a real chance the applicant will suffer serious harm if she returns to Vietnam now or in the reasonably foreseeable future for reason of her gender, her limited employment options, impeded access to quality health care, vulnerability to crime and natural disasters or any other of the reasons claimed.  Accordingly, the Tribunal finds the applicant does not have a well-founded fear of persecution in Vietnam.

CONCLUDING PARAGRAPHS

55.    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).

1. 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). For the same reasons already articulated above, the Tribunal is not satisfied that the applicant will be without access to any employment in Vietnam.  Nor does the Tribunal accept that she will be unable to provide a co-payment required to access health care and/or that she will face harm which is intentionally inflicted by the denial of access to quality or affordable health care.  The Tribunal finds her claims in respect of physical and emotional harassment and insecurity to be speculative and/or not supported by country information.  Whereas she may be affected by natural disasters the Tribunal considers this is a risk which will be faced by the population generally and not by the applicant personally.  For these reasons, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of her removal from Australia to Vietnam there is a real risk that she will suffer significant harm.  Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Protection visa.

Tania Flood
Member

Attachment  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

1. For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

1. For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

2. A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

3. A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

4. If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

5. Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

6. In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

1. For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

2. A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

1. Protection visas – criteria provided for by this Act

…

1. A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…