1730929 (Refugee)

1730929 (Refugee) [2023] AATA 1782 (5 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Haidari Smart
CASE NUMBER:  1730929
COUNTRY OF REFERENCE:                   Pakistan
MEMBER:Kate Millar
DATE:5 March 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 05 March 2023 at 3:18pm
CATCHWORDS
REFUGEE – protection visa – Pakistan – religion – Shi’a – race – Hazara – threats of harm by LeJ (Lashkar-e-Jhangvi) – harassment by security services – inability to relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AA, 5H, 5J, 5K, 5L, 5LA, 36, 46A, 65, 411, 499
Migration Regulations 1994 (Cth), r 2.08F; Schedule 2, cl 866.222
CASES
DBB16 v MIBP (2018) 260 FCR 447
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 28 November 2017 to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] is a citizen of Pakistan. He applied for the visa the subject of this review on 21 September 2017. The delegate refused to grant the visa because although he found [the applicant] had a well-founded fear of serious harm because of his ethnicity and religion in Quetta, he could relocate to Lahore or Islamabad where he would not face a real chance of serious harm because of his religion or ethnicity.
[The applicant] appeared before the Tribunal on 3 March 2023 to give evidence and present arguments and was represented in relation to the review. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review.
HISTORY
[The applicant] has had a difficult path to having his claims for protection assessed and decided. He first arrived in Australia in 2012 after the boat in which he was travelling was intercepted by the Australian Navy. He was taken to Darwin and he applied for a Class XA, Subclass 866, permanent protection visa.
On 19 December 2013, a recommendation was made by the then Department of Immigration and Citizenship that he was a person in respect of whom Australia has protection obligation under the 1951 Refugees Convention (as amended by the 1967 Refugee Protocol).
His application for a protection visa was ultimately refused under s.65 of the Migration Act 1994 (the Act) because cl.866.222 of Schedule 2 of the Migration Regulations 1994 (the Regulations) prevented the grant of a protection visa to a person who arrived in Australian as an unauthorised maritime arrival.
This provision was later disallowed and was taken to have never had effect. On 16 July 2014, the Secretary advised the Refugee Review Tribunal (RRT) that [the applicant] was within a group of people affected by the disallowance of this provision and met Australia’s protection obligations at the date of the letter. On 31 July 2014 the RRT remitted his application for protection for reconsideration.
On 16 December 2014, the Department deemed Mr Mohammadi’s application for a permanent protection visa to be an application for a Temporary Protection (Class XD) (Subclass 785) visa, under r.2.08F of the Regulations which commenced on the same day.
[The applicant] was granted a temporary protection visa on 20 July 2015. This is a visa for a term of three years granted on the basis that he was owed protection obligations.
[The applicant] then lodged an application for a Safe Haven Enterprise Visa (Class XE) (Subclass 790) visa, and this visa application is the subject of this review. After his applicant was lodged, the Minister lifted the bar in s.46A of the Act to allow his application.
On 28 November 2017, a delegate of the Minister refused his application, finding that while he would face a real chance of serious harm because of his Hazara ethnicity and Shi’a religion if he were to return to his home area of Quetta, he could relocate to Lahore or Islamabad where it was found the risk of him being seriously harm was remote.
[The applicant] applied to this Tribunal for a review of the decision on 7 December 2017.
According to Departmental records, the applicant arrived in Australia by sea at the Territory of Ashmore and Cartier Islands [in] August 2012. Following the Full Federal Court judgment in DBB16 v MIBP,[1] the applicant is not an ‘unauthorised maritime arrival’, as was defined in s 5AA of the Act due to this arrival method. [The applicant] arrived in Australia prior to 1 June 2013 and does not otherwise meet the definition of an unauthorised maritime arrival.
[1] (2018) 260 FCR 447
Accordingly, he is not a ‘fast track applicant’ as defined in s 5(1) of the Act, and the subsequent decisions to refuse to grant him a protection visa is not a ‘fast track decision’ as defined in s 5(1)). Instead, they are Part 7-reviewable decisions able to be reviewed by the Migration and Refugee Division of the Tribunal under s 411.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to 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.
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.
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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The most recent DFAT report is contained in the DFAT Country Information Report Pakistan dated 25 January 2022 (DFAT Report).
CONSIDERATION OF Claims and evidence
To meet the requirements for a protection visa, [the applicant] must meet the requirements of s.36(2)(a) of the Act. This in turn requires that he meets the definition of refugee in s 5H of the Act. Section 5H of the Act requires that he is outside his country of origin and owing to a well-founded fear of persecution is unable or unwilling to seek the protection of that country.
[The applicant] is outside of Pakistan. Section 5J of the Act defines when a person has a well-founded fear of persecution. There are three elements that must be met to have a well-founded fear of persecution. In summary these are that he fears persecution for particular reasons, there is a real chance that he will be persecuted for those reasons and that the real chance of persecution relates to all areas of Pakistan. If these requirements are met, the Tribunal must also consider if he is taken not to have a well-founded fear of serious harm because effective protection measures are available or because he could take reasonable steps to modify his behaviour.
Does [the applicant] fear being persecuted because of his race and his religion?
This first element requires that [the applicant] fears being persecuted because of his race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)(a) of the Act.
It has been consistently accepted that [the applicant] is of Hazara race and Shi’a religion. The DFAT report states that the Hazara are an ethnic group of distinct East Asian appearance. The Hazara language is Hazaragi. [The applicant] is of Hazara appearance and has required a Hazaragi interpreter, and it is accepted he is Hazara.
DFAT report most Hazaras are Shi’a, and the Tribunal accepts [the applicant] is Shi’a.
[The applicant] has consistently claimed to fear harm because of his race and his religion, and the Tribunal finds accordingly.
Is there a real chance he would be persecuted because of his race or religion?
DFAT assesses that:
Hazaras in Balochistan face a high risk of violence from militants on the basis of their ethnic and sectarian identity. Outside Balochistan the risk of violence for Hazaras is moderate. Hazaras face a higher risk of violence than other Shi’a due to their distinctive appearance and segregation. Outside Balochistan, DFAT assesses Hazaras face a low risk of societal or official discrimination, but notes relocation to these areas is difficult or impossible for many (see Internal Relocation).
[The applicant] said his mother, [sister] and brother all live in Quetta. While ti was stated before the delegate that his brother was working in Lahore, [the applicant] stated he said his brother pretended to work in Lahore so he could try to apply for a visa to come to Australia, as he would not be accepted if he applied from Quetta. Quetta is in Balochistan.
[The applicant] said he provides financial support for his mother and his sister, and that his father died as a result of complications from COVID in 2020. He has one sister in Australia and one sister who is married and lives in Quetta with her family. His older brother lives in Quetta.
[The applicant] said his older brother owns a [store] and faces the risk of harm obtaining supplies from other locations within Quetta. He said his brother will be attacked or targeted because he is Hazara by the LeJ (Lashkar-e-Jhangvi).
The LeJ are reported by DFAT to be a radical Sunni militant group which seeks to eradicate Shi’a influence from Pakistan, and to have carried out numerous deadly attacks on Shi’a communities including targeted attacks against Hazaras.[2] There are reports that the Frontier Corps harass people who are Hazara.[3]
[2] At [2.41]
[3] DFAT, [3.6]
The Tribunal finds there is a real risk of serious harm to [the applicant] including a threat to his life and significant physical ill-treatment because of his ethnicity and religion if he were to return to Pakistan.
DFAT report that medical, education and other services in the Hazara enclaves in Quetta are basics and food and other essentials must be brought in from outside the enclave.[4] [The applicant] is likely to have to travel to obtain health services and work which places him at risk of significant economic hardship that threatens his ability to subsist.
[4] [3.6]
As a result, the Tribunal finds there is a real chance [the applicant] will suffer serious harm as defined in s 5J(5) of the Act because of his race and religion if her were to return to Pakistan and that he meets s 5J(1)(a) and (b) of the meaning of a well-founded fear of persecution.
Does the real chance of persecution relate to all areas in Pakistan?
To meet the definition of a refugee in s.5J of the Act, there must be a well-founded fear of persecution. For a person to have a well-founded fear of persecution, the real chance of persecution must relate to all areas of a receiving country (s.5J(1)(c) of the Act).
DFAT reports that travel by road for Hazaras is unsafe in parts of the country.[5] It is also reported that whether a Hazara can relocate strongly depends on their personal resources and family connections,[6] and that relocation outside Balochistan is difficult or impossible for many.[7]
[5] At [5.23]
[6] At [3.9]
[7] ibid
[The applicant] completed high school in Pakistan and then worked for his father in a [ship]. In Australia he was worked on a [farm]. He is currently receiving worker compensation payments and state he injured his knee which has now progressed to pain in his back and shoulder. He provided medical reports confirming an injury to his ACL, and states he has decided not to have surgery in case it makes his knee worse. He suffers from anxiety and depression and his treating psychologist reports he suffers PTSD. He takes medication for depression.
The reports of a diagnosis of PTSD is consistent with [the applicant]’s description of being present at an Ashura Day march in 2004[8] where 20 people were killed and many injured. He said he was not injured himself but saw other people who were injured in the attack on this march.
[8] Country Advice (refworld.org)
The Tribunal finds that the effect of relocating to other areas such as Lahore or Islamabad with be difficult for [the applicant] due to his lack of family or other support. The combination of his physical and mental ill health and his race and religion, this results in the Tribunal finding there would be a real chance of serious harm, in the form of being unable to subsist if he were to live in another part of Pakistan such as Lahore or Islamabad.
As a result, the Tribunal finds that the real chance of persecution relates to all areas of the receiving country, and [the applicant] meets 5J(1)(c).
As [the applicant] meets s 5J(1)(a), (b) and (c), he was a well-founded fear of persecution unless effective protection measures are available to him in Pakistan, or he can take reasonable steps to modify his behaviour. As reasonable steps to modify behaviour do not apply where a person fears harm due to his or her race or religion, the remaining question is whether effective protection measures are available to him.
Are effective protection measures available to [the applicant] in Pakistan?
A person will be taken not to have a well-founded fear of serious harm if effective protection measures are available to the person in a receiving country (s.5J(1)(c) of the Act).
The term “effective protection measures” is defined in s 5LA of the Act. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
It is not suggested there is an organisation or party other than the State that could offer protection to Hazaras in Pakistan.
DFAT report that state protection in Pakistan is limited due to under-resourcing, corruption, socio-economic factors and lack of political will.[9] Some groups are denied adequate state protection on discriminatory grounds.
[9] [5.1]
On this case, [the applicant] says that the Frontier Corps, who are responsible for providing security services in the Hazara areas of Quetta, shoot at Hazaras and that they do not offer them protection.
The Frontier Corps assist with border security and internal law-and -order, and while notionally under the control of the Ministry of Interior are in practice under the control of the military.[10] DFAT records reports by the UN, Human Rights Watch and Amnesty International of “widespread human rights violations, including torture and other ill-treatment, arbitrary detention, extrajudicial executions and enforced disappearances by the police, Rangers and Frontier Corps.”[11]
[10] At [5.11]
[11] At [5.12]
The Tribunal was specifically referred to the DFAT Report which states “Local sources report Frontier Corps routinely harass Hazaras at checkpoints. Human Rights Watch has reported that retired members of the Frontier Corps have described Hazaras as ‘agents of Iran’ and ‘untrustworthy’.”[12] It was submitted this shows that while some protection is offered by Pakistan authorities, this cannot be accessed by Hazaras as the Frontier Corps discriminate against Hazaras.
[12] At [3.6]
DFAT report that Hazaras live in two enclaves in Quetta and the government provides security in these communities including vehicle checkpoints and searches on entry and exit. Hazaras who leave Quetta are required to notify security agencies.
The Tribunal does not consider that Pakistan can offer equitable protection to Hazaras throughout Pakistan. It finds the Frontier Corps harass Hazaras and accepts the submission that access to protection by the Frontier Corps is limited for people who are Hazara. The police force is reported to deny state protection on discriminatory grounds, and the Tribunal considers there is considerable risk they will deny [the applicant] protection due to his religion and his ethnicity.
The Tribunal finds that effective protection measure are not available to [the applicant], and his well-founded fear of persecution is not excluded by s. 5J(2) of the Act.
CONCLUSION
The Tribunal has found that [the applicant] is outside his country of origin and due to a well-founded fear of persecution is unwilling or unable to seek the protection of his country. As a result, he meets the definition of a refugee in s 5H of the Act.
A criterion for a protection visa is that applicant is a non-citizen in Australia in respect of whom Australia ha protection obligations because the person is a refugee. As [the applicant] is a refuge, he meets s.36(2)(a) of the Act, and it is appropriate to remit the matter for reconsideration on the basis that he meets s 36(2)(a) of the Act.
DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Kate Millar
Senior 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.
…

[2023] AATA 1782

5 March 2023

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