1731654 (Refugee)

[2022] AATA 5087

1731654 (Refugee) [2022] AATA 5087 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Arujunan Ganasan (MARN: 1383868)

CASE NUMBER:  1731654

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jessica Henderson

DATE OF ORAL DECISION:  12 December 2022

DATE OF WRITTEN STATEMENT:         22 December 2022

PLACE OF DECISION:  Perth

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 22 December 2022 at 2:52pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – member of particular social group and imputed or actual political opinion – Tamil fisherman suspected to have assisted LTTE – beaten by military – returned failed asylum seeker – delay in claiming actual association with LTTE – advice from other detainees that Australian government considered LTTE to be terrorist organisation – participation in Tamil events in Australia – consistent and credible evidence – country information – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(c), (3), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

CASE
AGA16 v MIBP [2018] FCA 628

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

2. The applicant is a citizen of Sri Lanka, of Tamil ethnicity.  He applied for the visa on 26 May 2017. The delegate refused to grant the visa on the basis that any persecution that the applicant faced on his return to Sri Lanka would not, on the delegate’s findings, rise to serious or significant harm.

3. The applicant appeared before the Tribunal on 12 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 12 December 2022.

   Criteria for a protection visa

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is whether the applicant meets any of the alternative criteria in s 36(2)(a), (aa), (b) or (c), that is, whether they are owed protection under the 'refugee' criterion or 'complementary protection' criterion or are otherwise a member of the same family unit as an individual who meets these requirements. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Identity

13. On the basis of the identity documents provided by the applicant, the authenticity of which was accepted by the delegate, the Tribunal accepts that the applicant is correctly identified, and that he is a Sri Lankan national of Tamil ethnicity.

    Claims for protection

    Initial claims for protection

14. The applicant arrived in Australia in November 2010, and his initial claims for protection in 2010 were based on him being imputed with a pro-LTTE political opinion.  In 2012 the applicant’s claims were assessed by the IMR, and the applicant raised the germ of the claims which he now presses; that he is a member of the particular social group ‘fishermen in Sri Lanka’ and that he was beaten by the navy because he was suspected to have assisted the LTTE.  He expanded on those claims during a subsequent assessment by the Department during an International Treaties Obligations Assessment (ITOA), and stated that he had, in fact, assisted the LTTE by the transport of goods, including weapons.

    Claims in the protection visa application

15. The applicant’s claims in his protection visa application in December 2017 were consistent with those made to in the ITOA and were fleshed out in greater detail in post-interview submissions. The delegate summarised the applicant’s post hearings submissions as including:

    ·The applicant has a well-founded fear of persecution due to:

    oHis Tamil race

    oImputed political opinion

    oMembership of a particular social group (PSG) – returnee from the west/failed asylum seeker.

    ·The applicant’s prolonged period outside of Sri Lanka, his smuggling weapons and cadres to the LTTE and the fact that he fled during the civil war would increase the authorities’ suspicion, subjecting him to interrogation.

    ·The applicant has also attended events in the Tamil community in Western Australia, namely [Event 1]. Photographs are enclosed of the applicant.

    ·Tamils from the north are not able to live freely and are subject to harassment and harm from authorities.

    Tribunal hearing and Tribunal’s findings

16. The applicant’s evidence at the hearing was that he is the son of a fisherman who used to assist all the pro-Tamil groups with the transport of people and goods, including the LTTE.  The applicant’s earliest recollection of hearing about the LTTE was positive; as a child he heard it spoken of as a group that was fighting for Tamils and for the country.  Both he and his wife have relatives who were members of the LTTE, although not in their immediate family.

17. The applicant said that he had worked on his father’s fishing boat as a child, but his father had not permitted the applicant to be on board when LTTE people or goods were being transported. The applicant’s father lived in Jaffna which was LTTE-controlled, and the applicant’s impression was that his father had no choice but to assist the LTTE.

18. When the applicant was old enough to operate his own fishing vessel, he was approached by the LTTE for assistance to transport people and goods.  The applicant told them that he was unable to assist them because he lived in an army-controlled area and would be in too much danger if he helped the LTTE.  He said that the LTTE had not accepted that answer and had ‘forced’ him to help them.

19. The Tribunal pressed the applicant on what he meant by ‘forced’ and the applicant referred repeatedly to the role that the LTTE played in fighting for the Tamil people.  He did not give evidence that the LTTE offered or threatened him with violence.  The Tribunal understands the applicant to have been emotionally blackmailed into assisting the LTTE.

20. The applicant recalled and described for the Tribunal his first-time carrying goods for the LTTE, which comprised bread (then unavailable in the LTTE territory).  He described in detail for the Tribunal the occasion on which he had been fishing in the LTTE area and had been approached by the LTTE.  He said that he had ignored them but they fired their weapons into the air to get his attention.  He agreed to transport goods for them, under duress.  Whilst doing so, he was intercepted by a naval vessel.

21. The applicant showed signs of distress as he recounted to the Tribunal what happened next.  He said that he was [beaten] with the butt of a gun and indicated to the Tribunal where and how it had struck him, causing [an injury] ; he showed the Tribunal the residual [result of the injury].

22. The applicant said that he was handed to the army, where he had his hands tied behind his back and was beaten for an hour.  The Tribunal pressed the applicant on how he knew that it was an hour that the beating lasted, and the applicant’s evidence was that as a fisherman he is accustomed to marking the passage of time by reference to the sun and the natural conditions.  The applicant described being beaten to the ground, being kicked in the groin, and being beaten with rope.  He described feeling giddy and nearly passing out.  When he tried to sit, he said that he was pulled upright by the rope and forced to kneel.  He said that he thought he was going to die.

23. The applicant described in detail the sudden confusion when there was an exchange of shells between the army and the LTTE, during which he was able to escape.  He said that he had been blindfolded but an unidentified person pulled the blindfold off him and freed his hands.

24. The applicant went to his wife and kids and moved them to his mother’s house.  Then he fled to Colombo.  His wife and kids didn’t have passports and he paid money to obtain them the same day.  In total he was 2 days in Colombo and then took a further 10 days to travel to [Country].  He said that he knew time was against him because his name and details would be identified through the registration of his boat. 

25. He and his family left Sri Lanka for [Country] on their passports 12 days after the applicant was caught assisting the LTTE.  According to the country information from Canada, at that time there was no central database for recording details of LTTE suspects.[1]

    [1] Canadian Immigration Review Board Report.

26. The applicant made the trip to Australia by boat.  He says that his children were too young to travel by that means, so his wife stayed in [Country] to care for them.  He has not seen his wife or his kids since leaving [Country].

    Credibility

27. The applicant’s evidence was delivered confidently, and showed hesitation and thoughtfulness consistent with a genuine attempt to recollect details.  The Tribunal did not see anything in the delivery of the applicant’s evidence or his body language to suggest that he was not telling the truth.

28. The Tribunal has considered whether the applicant’s delay in raising a connection with the LTTE is relevant to the assessment of the applicant’s credibility.  The applicant says that he did not raise these claims originally because when he was in the Queensland detention centre it was generally well-known that “those who disclosed to have helped or were associated with LTTE would be detained by ASIO and not granted a protection visa.”  The Tribunal has previously accepted in respect of other claims that there was media coverage at the relevant time indicating that the Australian government considered the LTTE to be a terrorist organisation, and as such it was reasonable for detainees to be concerned about providing information that might suggest that they were affiliated with the LTTE.  The Tribunal does not draw any adverse inference about the applicant’s credibility because of his failure to mention his present claims in that environment.  There is a reasonable explanation for that failure.

29. The new claims include sur place claims based on his involvement with Tamil events in Australia during and after 2017.  The Tribunal notes that the applicant’s account of his early life is consistent with his claim to be a strong supporter of the Tamil nation and all the groups that have fought for it, including the LTTE.  The Tribunal is satisfied that the applicant participated annually from 2017 in [Event 1] and [Event 2] for the primary purpose of remembering the deaths of those who fought for an independent Tamil state and the Tamils killed in 2009 by the Sri Lankan government.

30. The Tribunal accepts the applicant’s evidence and finds that his account of events leading to his departure from Sri Lanka, as detailed in the paragraphs above, as fact.

    Refugee nexus

31. The Tribunal accepts that the applicant is a member of a particular social group comprising Tamil fishermen who have been detained and beaten for suspected and/or actual LTTE assistance who escaped and fled Sri Lanka during the civil war.

    Fear of persecution

32. The applicant appears to the Tribunal to be genuinely afraid that if he returns to Sri Lanka he will be questioned by airport CID about his reasons for travelling to Australia. He is not able to offer any explanation for his travel to Australia other than the truth; that he fled to Australia via [Country] because he was arrested for assisting the LTTE and escaped.  He says that there is no point in lying because a cursory check on him in his village would reveal that he had worked for the LTTE, and that he had fled to [Country] after escaping from the army.  He fears that CID would at least detain and question him further, and that the questioning would involve a beating which he says that he would not survive given his current health problems.

    Is the fear well-founded?

33. It appears from the country information available to the Tribunal that the applicant’s fears are well-founded.

34. The 2021 Department of Foreign Affairs and Trade Report on Sri Lanka includes the following information:

    3.44 The International Truth and Justice Project (ITJP), an NGO which documents torture and sexual violence by the security forces in Sri Lanka, claims that, while ex-LTTE cadres exist, they are no longer affiliated in any way with an extant LTTE, and are subject to harassment and discrimination by the Government. The Sri Lankan Government may not accept that the LTTE is finished, arresting several Tamils in 2021 under the Prevention of Terrorism Act (PTA) for alleged LTTE-supportive behaviour (see Prevention of Terrorism Act). In July 2021, a Tamil man was deported from Qatar to Sri Lanka at the request of Counter-Terrorism Investigation Department (CTID) for allegedly promoting the LTTE. In its May 2021 decision on the refugee status of Tamil activists in the UK, the UK Upper Tribunal found that the present Government of Sri Lanka was possessed of a ‘determination to prevent any form of resurgent separatism’.

35. There is a real chance, in the Tribunal’s view, that the applicant's arrival in Sri Lanka will result in him being questioned at the airport, and that his answers (or any resistance to providing answers) may cause an investigation during which he would be detained and questioned further as a person who has assisted the LTTE with the transport of weapons and people.

36. As noted in the country information the potential consequence as assessed by DFAT is a moderate chance of him being subjected to torture. DFAT has no evidence that torture is state-sanctioned but sources claim with some confidence that the Sri Lankan state is not taking adequate measures to eradicate such treatment, while increasingly creating an environment of impunity for its agents accused of violence. The applicant has in the past experienced serious harm at the hands of the authorities under questioning. The applicant's personal vulnerabilities are relevant in assessing the seriousness of any potential harm: AGA16 v MIBP [2018] FCA 628.

37. The Tribunal is satisfied any future harm or threats of harm the applicant may experience would amount to serious harm as contemplated in the Act.

38. As the accepted risk of harm feared is at the hands of government authorities, the Tribunal finds the applicant cannot access state protection. The Tribunal is satisfied, in light of the most recent DFAT country information, that the state does not offer an appropriate criminal law, a reasonably effective police force and an impartial judicial system given the clear risk of torture for persons incarcerated.  The most recent DFAT report states that: “No legal mechanism exists to initiate independent investigations for state violence, including extrajudicial killings. Numerous historical cases of extrajudicial killings remain unsolved”.

39. The Tribunal finds that, given the above, effective protection measures are not available to the applicant in Sri Lanka.

40. In the absence of effective internal protection, the Tribunal finds that the applicant faces a real chance of persecution for reason of his membership of the above identified social group, if he returns to Sri Lanka now or in the reasonably foreseeable future. As the feared persecution is from the government authorities, and there is a real chance of it occurring immediately upon his attempted entry into the country, the Tribunal finds that the real chance of persecution relates to all areas of Sri Lanka as per s 5J(1)(c).

41. The Tribunal has considered whether the applicant could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution as per s 5J(3).  However, the only mitigation that might assist the applicant if he is questioned by CID at the airport is to provide a fictitious explanation for his travel to Australia.  The Tribunal considers that unlawfully providing an untruthful answer to a question posed by a government official is not a reasonable step to modify behaviour.  In any event, the Tribunal accepts that such a fiction would be easily exposed if the officials were suspicious of the applicant’s answers for any reason.

42. There is no evidence before the Tribunal to indicate that the applicant may have a right to enter and reside, whether temporarily or permanently, in any country apart from Sri Lanka and as such the exception with respect to third country protection contained at s 36(3) does not apply.

1. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   decision

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

   Jessica Henderson
   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.

   …