1729797 (Refugee)

[2023] AATA 1520

1729797 (Refugee) [2023] AATA 1520 (28 March 2023)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729797

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Steve Norman

DATE OF DECISION:  28 March 2023

DATE CORRIGENDUM

SIGNED:30 May 2023

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

‘The first page of the decision record should read “28 March 2023” instead it states the 23 March 2023’

Steve Norman
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729797

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Mr S Norman

DATE:23 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2023 at 2:30pm

CATCHWORDS

REFUGEE – protection visa – Fiji – economic conditions – employment – health system – education – change of government in Fiji – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 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 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 6 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Fiji, applied for the visa on 13 June 2017.

2. The Department delegate’s decision was not lodged with the Tribunal.

3. The applicant appeared before the Tribunal on 28 March 2023, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

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

    The applicant’s receiving country:

11. With the Protection visa (PV) application, the applicant lodged a photocopy of the bio-data page of her Fiji passport (expiry date: [in] 2026[1]). The Tribunal accepts the applicant is a citizen of Fiji, and that Fiji is her receiving country.

    The applicant’s migration history:

    [1] PDF – p.55 (‘PDF’ refers to the merged Department file on the Tribunal CASEMATE database). 

12. The applicant’s migration history follows:

Date	Event details
11/10/2016	Granted Tourist visa FA 600 valid till 14/07/2017
[October] 2016	Arrived in Australia
[December] 2016	Departed Australia
[April] 2017	Arrived in Australia
[May] 2017	Departed Australia
[June] 2017	Arrived in Australia
13/06/2017	Applied for protection visa XA 866
24/07/2017	Granted bridging visa A in effect

The Tribunal’s assessment of the applicant’s claims:  

1. The applicant (DOB: [specified]) said she could speak both English and Fijian;[2] and that she had departed Fiji lawfully on a passport in her own name.[3] In her PV form, the applicant claimed:

   ·     she had travelled between Fiji and Australia on several occasions using her Tourist visa

   ·     she believed she was wasted living in Fiji while in Australia she had been trying to find work and study

   ·     she said returning to Fiji would not help her as the opportunities are in Australia

   ·     she believed she had gone through financial, mental and emotional harm – which she said if not addressed would affect her whole life. She believed the harm came from the people who have power and control in Fiji. These people have access to the legal system, and the outside world does not know what is really going on

   ·     she believed the Fiji authorities might protect her but the harm will not go away

   ·     she could not relocate within Fiji as the harm exists all over Fiji

   [2] PDF – p.32.

   [3] PDF – p.38.

2. In submissions to the Tribunal dated 2 August 2022, the applicant claimed:

   ·     she had settled in Australia and wished to remain here with her family (at hearing the applicant said she had [an age] year old child)

   ·     in Fiji she lived in fear and uncertainty as there was no rule of law. She said she did not wish to return to Fiji because of the insecurity of the government, economy, employment, poor medical health system, an appropriate education system, insecure food supplies, all of which would lead to a ‘disaster with her livelihood and young family’

3. In writing, the applicant continued:

   ·     She was pursuing studies in [a named course] with [College 1] - which she said was a ‘critical area and in high demand of labour shortage in’ Australia (though at hearing the applicant claimed she was unable to complete her studies due to COVID-19)

   ·     She also lodged country information reports relating to Fiji - the country information contained inter alia a mix of information about political dissidents and improper actions of the Fiji government and its agents (at hearing, the applicant confirmed the country information she lodged was intended to relate to her above claims)

4. Regarding the applicant’s claims of ‘uncertainty’, ‘no rule of law’, insecurity of government’, the country information stated:

   2.34 Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem … Accusations of police violence are commonly reported and regularly investigated…

   …..

   5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

   …..

   3.42 Fiji has a vibrant human rights NGO scene relative to its small size. NGOs include those linked to women’s rights, trade unions, environmental activism, religious organisations and health services. …[4]

   [4] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

5. Regarding the applicant’s claims about the ‘economy’ and ‘employment’, the country information stated:

   2.8 Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.

   …..

   3.2 Parallel ethnic communities have a long history in Fiji. The colonial government encouraged the separate development of ethnic communities that lived, worshipped and were educated separately. Today, some separation between the communities continues but it is not officially mandated. For example, Indo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service.[5]

   And:

   2.21 Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.[6]

   [5] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

   [6] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

6. Amongst other things the country information also included that the United Nations in 2013 reported that within the Pacific region 'poverty is viewed from the perspective of hardship and a lack of opportunity, in other words, the 'poverty of opportunity".[7] The UN further noted that extreme poverty is rare in most Pacific island developing economies and that Fiji was amongst countries in the Asia-Pacific region that had significantly lowered poverty rates in comparison with the early 1990s.[8] Data from a United Nations (UN) report and the World Bank appeared to indicate the percentage of the population living in poverty in Fiji had decreased compared with the last recorded data, from 35-39 per cent in 2003, to 31-35 per cent in 2009. It was estimated that around a third of Fiji's population, (31-35 per cent or approximately 0.3 million people), still lived in poverty.[9] The Social Security system included a Poverty Benefit Scheme, Care and Protection Allowance, a Social Pension Scheme and food vouchers. This system reportedly had relatively low impact due to the low level of overall investment.[10]

   [7] C1S26801: Statistical Yearbook for Asia and the Pacific 2013, 3 December 2013 [8] C1S26801: Statistical Yearbook for Asia and the Pacific 2013, 3 December 2013 [9] C1S27242: Central Intelligence Agency (CIA), World Fact book, accessed 12 February 2014, accessed 12 February 2014; C1S27243: World Bank data, accessed 12 February 2014; C1S26801: Statistical Yearbook for Asia and the Pacific 2013, 3 December 2013 [10] Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance', UNICEF, February 2015, CISEC96CF1 5027

7. Regarding ‘health’, the country information stated:

   2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.[11]

   [11] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

8. Regarding education, the country information stated:

   2.16 School education is compulsory until age 15. The Government provides free education but costs such as uniforms are usually not covered. Enrolment is universal, even in outer islands (though some students will move and stay with extended family to pursue secondary or tertiary education). Literacy is almost universal. Schools are mostly provided by religious organisations but receive government subsidies and teach a government curriculum. In-country sources told DFAT teacher quality is high overall, but services for students with specific needs (such as those with learning disabilities, or advanced students) are less available than in Australia.

   2.17 Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.[12]

   [12] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

9. Regarding food supply, and inter alia whether conditions in Fiji may give rise to a ‘disaster for the applicant and her family’s future or livelihood’, the country information stated:

   2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.[13]

   Further:

   2.23 iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.[14]

   [13] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

   [14] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

10. At hearing, the Tribunal put the gist of the country information to the applicant for comment. She said she had no comment. The Tribunal then put to her that neither her claims nor the country information considered, indicated the applicant (or her child) had a real chance of being harmed for any reason (including any reason prescribed in the Migration Act), and nor did it appear she (or they) had a real chance of being inter alia harmed personally. In response the applicant did not materially comment.

11. When subsequently discussing whether she may be harmed in Fiji as a failed asylum seeker, the applicant did say she had departed Fiji prior to the last change of government, and this may cause her to be subject to some harm on return. However, the Tribunal again referred to her claims and the most recent country information (discussed above), and again indicated it did not appear she would have a real chance of suffering serious or significant harm in Fiji. The applicant did not materially comment.

12. The Tribunal accepts the applicant and her child, and her family in Fiji (to whom she remits money), would be inter alia financially advantaged should the applicant remain in Australia. However, and based on the above findings and reasons, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji.

    Failed asylum seeker:  

13. The country information stated:

    5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[15]

    [15] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

14. After discussing same at hearing, and after having put the gist of the country information to the applicant for comment, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji, if she returned as a failed asylum seeker.

15. 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).

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

17. There is no suggestion 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

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

    Mr S Norman
    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.

    …