1722737 (Refugee)

[2018] AATA 643

1722737 (Refugee) [2018] AATA 643 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1722737

COUNTRY OF REFERENCE:                  Estonia

MEMBER:Paul Windsor

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2018 at 4:30pm

CATCHWORDS
Refugee – Protection visa – Estonia – Social group – Member of a gang in Estonia – Drug dealer – Fears harm by former gang associates – Economic hardship in Estonia – Australian partner – Separation from partner – No significant harm – Right to enter and reside in a safe third country – Decision under review should be affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K-5LA, 36, 65, 499
Migration Regulations 1994 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 on [date] September 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Estonia, applied for the visa on [date] September 2017. The delegate refused to grant the visa on the basis that the applicant can avail himself of a right to enter and reside in a safe third country (as per s.36(3) of the Act) and therefore Australia has no protection obligations towards the applicant. The delegate also found, however, that the applicant’s claims in relation to the refugee criterion did not indicate or suggest he feared being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. In relation to the complementary protection criterion the delegate found there were not substantial grounds for believing that there is a real risk the applicant would suffer significant harm if returned to Estonia.

3. The applicant applied to the Tribunal for review of the decision to refuse to grant him a protection visa on [date] September 2017.  The applicant provided the Tribunal with a copy of the delegate’s decision record.

4. The applicant appeared before the Tribunal on 28 February 2018 to give evidence and present arguments.  The applicant’s de facto partner attended the hearing in support of the applicant.  The hearing was conducted in English.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration (the Department) – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In his Protection visa application the applicant claims to be a citizen of Estonia who was born in [Estonia], on [date].  He states that he is ethnic Estonian, is a Christian, and speaks, reads and writes [in multiple languages].  He indicated he is in a de facto relationship with an Australian citizen.  He stated he departed Estonia legally and last arrived in Australia on [date] May 2016 (The delegate’s decision record indicates he actually entered Australia on [date] May 2015).

    Claims from the Protection visa application

12. The applicant’s claims from his Protection visa application are summarised as follows:

    ·He is afraid to go back to Estonia because they are planning a war in his country.

    ·He has been in Australia for 2 years and has his partner and her family here.  They are his family and he does not want to lose them.

    ·He also has the ability to get a job in Australia.  He does not have anything in Estonia where there are no opportunities for life and there is no way to live. 

13. The applicant submitted with his application copies of various press reports regarding NATO troop and equipment deployments on Estonia’s border with Russia.  He also submitted a letter of support from his partner.

    Evidence from the hearing of 28 February 2018

14. At the hearing the applicant indicated that while his parents and [sisters] remain in Estonia his parents are separated and he is estranged from all of his family members.  He said he does not speak with his family and last had contact with them three years ago.

15. The applicant said that he completed his secondary schooling about [several] years ago.  He said he had not done much work since he left school.  He said he had worked in [Country 1] for about a year (one month on, two weeks off).  The Tribunal queried the applicant that he indicated in his Protection visa application that he finished school in [year] then undertook a trade [course]) until Sept 2001, had worked in [Country 1] for a few month from May until June 2014, but also indicated that he worked from May 2000 until August 2015 with [Company 1], based in Tallinn [Estonia].  The applicant responded indicating this was not the case and that [Company 1] was the company that organised the work he did in [Country 1] for about a year.  When asked what else he did over this period the applicant said ‘nothing much’.  When asked how he supported himself he said through friends who are now overseas in England and in Australia. 

16. The applicant indicated that in Australia he has been working in [other industries].  He also indicated he had done [another job] and had worked with a company called [name]. He commented that this company wanted to teach him [a certain skill].

17. The applicant indicated that he has been with his partner for nearly three years now and she is supporting him at the moment as he does not have work rights on the Bridging visa E he holds currently.  The applicant indicated that he had been on his second Working Holiday visa but it was cancelled because he was charged with [an offence].  He indicated he was convicted and received a fine.  The applicant commented that he is now trying to get his Working Holiday visa back. 

18. The applicant indicated that he has renewed his Estonian passport (his previous passport expired [in] 2017.

19. The Tribunal asked the applicant what he fears would happen to him if he returned to Estonia.  He replied that he had been in the army in Estonia and has been watching the news coming from England.  He said Estonia is a very small country that has a border with Russia and NATO is there with a USA military presence.  He commented that his great great grandmother came to Australia during the Second World War and he thought history might repeat itself.  He said they all have to do 6 months service in the Army and while he did his service a long time ago, if there is a war he would need to go in it.

20. When asked if there were other things he fears the applicant replied that he had been doing stupid things a long time ago.  He said he was a member of a gang in Estonia and commented that he is trying to change his life.  He said this was 5 or 6 years ago.  When asked what he thought might happen in relation to that if he returned, he replied if they hear he has returned they will take him back as a member.  When asked what sort of gang he said they are Estonian Russian but commented the gang does not have a name.  When queried that he must have left this gang well before he came to Australia but had not indicated that he had any problems as a consequence, the applicant indicated he had left the gang before he came to Australia but said they were pushing him all the time to stay with them and deal with drugs.  When it was put to him that he must have been able to resist these advances he replied that he was trying to do his best there but he hadn’t been working and needed to get food to survive. 

21. The Tribunal queried the applicant why he found it difficult to get a job in Estonia.  He replied that it is not easy there.  The applicant indicated that he had looked for work in [another country] but the employer was ripping them off and commented that it is very hard to start if you do not have money.  He indicated that Estonia does not provide social security support for people who are unemployed.

22. The applicant also commented that he does not wish to lose his partner.  He indicated that he considered applying for a Partner visa but did not have enough money.  He said he was in detention [and] when released on a Bridging visa did not have work rights so could not raise money.  

23. The applicant’s partner indicated that she did not wish to provide evidence but commented that she just wanted the applicant to be with her.

24. The Tribunal discussed with the applicant country information regarding the international security situation in Estonia.

25. In the context of Estonia being a European Union (EU) member state (Since May 2004) and part of the Schengen (free movement for travel, work and living of EU citizens) area (since December 2007), the Tribunal also discussed with the applicant the implications of s.36(3) of the Act, that Australia is taken not to have protection obligations where a non-citizen has not taken all possible steps to avail himself of a right to enter and reside in a third country where they would not have protection concerns.

    Findings and reasons

26. The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Estonia, there is a real risk he will suffer significant harm.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Identity

28. On the basis of the copy of the applicant’s Estonian passport provided to the Department, the Tribunal accepts that the applicant is a citizen of Estonia and that his identity is as he claims it to be.  The Tribunal accepts that Estonia is the applicant’s ‘receiving country’ for refugee criterion purposes and for complementary protection purposes. 

    Assessment of claims

29. The applicant claims to fear harm in Estonia for four reasons: because he fears there may be a war in Estonia; because he was previously involved with a gang; because he has found it difficult to gain employment in Estonia in the past; and because he wants to be with his partner and her daughter in Australia.

    War in Estonia

30. The Tribunal accepts that there are concerns regarding the possibility of conflict between Russia and Estonia; and because Estonia is a NATO member state (since March 2004), between Russia and NATO member states (including the USA) on Estonian soil.  The applicant submitted with his application a number of press articles regarding NATO military exercises in Estonia and the stationing of NATO forces in Eastern Europe including the Baltic States of Estonia, Latvia and Lithuania, in response to ‘Russia’s Eastern European build up’.  A February 2016 article from the Sydney Morning Herald comments that ‘a move to triple the number of NATO troops in Eastern Europe will aggravate an already paranoid Russia and, according to experts, raise the risk of accidental war.

31. As discussed with the applicant at the hearing, the Tribunal also sourced a February 2018 article from the Express indicating that British troops had been deployed to Estonia as part of a NATO group including Danish, Canadian and Estonian forces, to deter Russian aggression and demonstrate that NATO is a capable force.[1]  The Tribunal finds that while reporting indicates there are tensions between Russia and NATO member states relating to areas of Eastern Europe including Estonia, the NATO activities are intended to deter any possible Russian aggression and to maintain peace.  The Tribunal notes that there has not been conflict between Russia and NATO forces and there is no indication that conflict is imminent.  The applicant commented that as someone who has done 6 months compulsory military service in Estonia he would be required to fight in any war but there is no suggestion that he has been called up or put on notice that he might be called up.  As discussed with the applicant, based on consideration of relevant country information, the Tribunal finds that the risk of war between Russia and NATO forces in Estonia is remote, particularly given the risk that any such conflict would escalate to a major superpower confrontation, and the limited strategic importance of Estonia to Russia.[2]  The applicant raised the example of Ukraine but the Tribunal notes country information indicating that that those areas of Ukraine ‘annexed’ by Russia had overwhelmingly ethnic Russian populations who had voted in a ‘plebiscite’ to secede from Ukraine, and contained strategic assets of importance to Russia in the form of a key Russian naval port providing access to the Black Sea.[3] The Tribunal concludes that there is not a real chance that the applicant would suffer serious harm or a real risk that he would suffer significant harm due to there being a war in Estonia in the foreseeable future.

    Risk from former gang associates

    [1] ‘British troops deployed to Estonia to ‘deter Russia’ with HUGE war game’, Express, 13 February 2018, ‘Why on earth Would Russia Attack the Baltics?’ The National Interest, ‘Crimea profile’, BBC News’ 17 January 2018,>

    The applicant indicated at the hearing that he is concerned about returning to Estonia because he had previously been a member of an Estonian Russian gang.  He said it was a long time ago and he had been doing stupid things.  When pressed he indicated that he left this gang 5-6 years ago.  The Tribunal notes that the applicant did not raised any concerns arising from previously having been a member of a gang in his Protection visa application.  At the hearing the Tribunal put to the applicant that as he came to Australia in May 2015 he must have spent several years in Estonia after leaving this gang during which time he experienced no difficulties.  The applicant responded that if they hear he has returned they will try to take him back.  He said previously they were pushing for him to come back to them and commented that they were dealing with drugs.  He added that he tried his best to resist but indicated it was hard to get work in Estonia and he needed to survive.

32. The Tribunal accepts that the applicant may have been involved in a gang in Estonia in the past and been involved in drug dealing.  However, the Tribunal finds that the applicant was able to leave this gang and cease these activities well before he came to Australia.   Noting that the applicant did not indicate in his application that he suffered any harm as a consequence of leaving this gang 5 or 6 years ago, the Tribunal does not accept that there is a real chance the applicant would suffer persecution involving serious harm, or a real chance that he would suffer significant harm, as a consequence of being a former gang member should he return to Estonia now or in the foreseeable future.

    Economic hardship

33. While Estonia is one of the poorest countries in the EU[4] with a per capita GDP of EUR 15,942 in 2016, its economic outlook is relatively positive with a forecast of continuing economic growth in 2018 (GDP expansion of 3.3%), and an inflation rate of 2.2% (2016) and unemployment rate of 6.2% (2015).[5] While the Tribunal accepts that the applicant may have experienced difficulty in securing employment in Estonia in the past, the Tribunal finds there is nothing in the applicant’s evidence to indicate or suggest he has in the past or there is a real chance that in the future he would be unable to secure employment and/or would suffer economic hardship in Estonia due to suffering persecution for one or more of the reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal also finds that any hardship the applicant might suffer due to unemployment in Estonia or inability to find work that pays as well as he would like would not amount to significant harm as defined at s.36(2A)(d) and/or (e) (cruel or inhuman treatment or punishment and/or degrading treatment or punishment), as the level and quality of employment opportunities in Estonia is not an act or omission that would be intentionally inflicted on the applicant or an act or omission that is intended to cause extreme humiliation to the applicant (as per s 5(1) of the Act).

    Separation from partner

    [4] ‘Richest and Poorest EU Countries’ AALEP, 8 December 2017, Estonia, Focus Economics, 27 February 2018, type="1">

34. The applicant has indicated that he does not want to be separated from his current partner and her daughter, whom he considers to be his family. He indicated at the hearing that he considered applying for a Partner visa but did not have sufficient money to do so while he was in detention [and] currently is unable to work as he does not have work rights. The Tribunal accepts that the applicant is in a relationship with his partner, who attended the hearing with him. The Tribunal finds that if the applicant departs Australia and returns to Estonia or is returned to Estonia he may be separated from his partner for a period of time. The Tribunal accepts that this will cause the applicant hardship. The Tribunal finds that any such hardship would not amount to persecution involving serious harm for one or more of the reasons of his race, religion, nationality, membership of a particular social group or his political opinion. The Tribunal also finds that any hardship the applicant might suffer due to being separated from his partner and her daughter would not amount to significant harm as defined at s.36(2A)(d) and/or (e) (cruel or inhuman treatment or punishment and/or degrading treatment or punishment) as any action to remove the applicant from Australia would arise from a lawful sanction in accordance with Australian Immigration law and would not be intended to inflict pain and suffering on or to cause extreme humiliation to the applicant (as per s 5(1) of the Act).

35. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in Estonia for any of the reasons set out at s.5J(1)(a) of the Act. The Tribunal also finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Estonia, there is a real risk that the applicant will suffer significant harm from a war, former gang associates, due to a lack of employment opportunities or because he will be separated from his partner and her daughter.

    Conclusions

36. 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).

37. 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). Having regard to the findings of fact set out above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

38. 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

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

    Paul Windsor
    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.

    …

    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 them 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.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (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.

    …