1732522 (Refugee)

[2023] AATA 394

1732522 (Refugee) [2023] AATA 394 (13 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Jeremy Bayliss (MARN: 1383248)

CASE NUMBER:  1732522

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Paul Noonan

DATE:13 January 2023

PLACE OF DECISION:  Melbourne

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 13 January 2023 at 6.02pm

CATCHWORDS

REFUGEE – protection visa – Sri Lanka – race – Tamil – imputed political opinion – Liberation Tigers of Tamil Eelam (LTTE) worker – family association with LTTE – conscripted LTTE service – attacks by Eelam People’s Democratic Party (EPDP) – lengthy time out of Sri Lanka – fear of detention – fear of torture– illegal departure – decision under review remitted

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 15 December 2017 to refuse to grant [name] (‘the applicant’) a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant claims to be a citizen of Sri Lanka. He applied for the visa on 20 October 2015 which the delegate refused to grant on the basis that they were not satisfied the applicant would be of adverse interest to the degree that there is a real chance or real risk of harm to him from the Sri Lankan authorities or their associated paramilitary group the Eelam People’s Democratic Party (EPDP) or anyone else. Therefore, the applicant is not owed protection.

3. The applicant appeared before the Tribunal on 24 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review. His- representative, Mr Jeremy Bayliss attended the Tribunal hearing.

   Criteria for a protection visa

5. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

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

7. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail 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).

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

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

   Mandatory considerations

10. In accordance with Ministerial Direction No.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

    Identity and country of reference

11. The applicant states that he was born on [date] in [his home town in] Jaffna, Northern Province, Sri Lanka. He provided a certified copy of his Indian refugee registration documents and a copy of his birth certificate to the Department, a copy of which is retained on the Department file and which confirmed the applicant’s date and place of birth. There is no evidence to suggest that these documents are bogus documents and, as such, the Tribunal accepts the applicant’s identity, as did the delegate.

12. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided by the applicant, the Tribunal finds that he is a citizen of Sri Lanka and as such his protection claim will be assessed against Sri Lanka as the country of reference and the ‘receiving country’ respectively.

    Applicant’s evidence

13. The applicant stated in his protection visa application that his ethnicity is Tamil and his religion is Hindu. He left Sri Lanka in 1996 at [age] years of age before arriving in India where he resided at a refugee camp in Chennai with his family. [In] April 2010 he left India and boarded a boat for Australia.

    Applicant’s original claims

14. The applicant first submitted claims for protection when he applied to the Department for protection. His claims are as follows (in summary): he left Sri Lanka in 1996 as he fears persecution for reason of his and his family’s imputed political opinion and membership of a particular social group, specifically association, support and employment with the Liberation Tigers of Tamil Eelam (LTTE) and the applicant’s Tamil ethnicity.

    ASSESSMENT OF CLAIMS AND FINDINGS

15. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36 (2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be remitted.

16. The applicant’s representative noted that the applicant had previously been found to be a refugee. Further that the applicant had not stepped foot in Sri Lanka for some 24 years or since he was [age] years old.

17. The applicant submitted that he fears returning to Sri Lanka because his father was associated with the LTTE movement and he fears harm for this reason. When asked if he was ever a formal member of the LTTE the applicant stated that he did not know. When asked why his father left Sri Lanka the applicant stated that he was experiencing problems but did not know what they were. The Tribunal notes that the applicant’s father appears to have been caught up in an altercation between the LTTE and the EPDP which it has been consistently stated resulted in the death of two EPDP members by the LTTE. The Tribunal noted that it will take into account the very young age of the applicant at the time of these events. The Tribunal accepts the applicant’s somewhat vague evidence and recall with respect to his father’s background is plausible due to his young age, the passage of time and his now long absence from his family. The Tribunal has considered the delegates finding that it would be difficult to plausibly accept that, with the passage of time and the non-targeting of the applicant’s father’s family after he fled, that the applicant’s father’s family members would now be of adverse interest to the EPDP. However, it is also the case that, despite this the applicant’s father and whole family remain in India, having departed illegally from Sri Lanka, which does, in the Tribunal’s view, lend significant weight to a genuine fear of harm still being held.  

18. The applicant stated that in India his father worked as an [occupation 1] and they survived on his income. The evidence appears to reflect that he worked on [sensitive] projects for the LTTE using these [occupation 1] skills.

19. The applicant stated that he has [children] born in Australia. They are [specified ages] years old. He married in Australia to a Sri Lankan citizen, [named]. The Tribunal notes relevant Australian marriage certificates and birth certificates are retained on the Department file and accepts these claims of marriage and children born in Australia as made by the applicant. In Australia he has worked in [specified industries]. He does not participate in any Sri Lankan or Tamil events. He just stays with his family. He has not suffered past harm in Sri Lanka. However, he was scared seeing the news about Sri Lanka and the conflict there. When asked about his online activities the applicant stated that he plays [deleted] online.

20. The Tribunal put to the applicant that DFAT assesses that, while they may be monitored, Tamils with former links to the LTTE, and who are not politically active, are generally able to lead their lives without concern for their security as a result of their past association with the LTTE.[1] Further that DFAT assesses Sri Lankan authorities may monitor members of the Tamil diaspora returning to Sri Lanka, depending on their security risk profile. DFAT assesses that following Tamils would be of particular interest to the authorities: those who hold leadership positions in Tamil diaspora groups, particularly groups deemed by the Sri Lankan Government to hold radical views; those who were formerly part of the LTTE, particularly in – but not necessarily limited to – high-profile roles; those who are suspected of raising funds for the LTTE during the war; and those who actively advocate for Tamil statehood.[2] Overall, DFAT understands that societal discrimination is not a major concern for returnees, including failed asylum seekers. Some Tamils who had failed to secure asylum in Australia and since returned to the Northern Province told DFAT they had not experienced significant societal discrimination following their return.[3]

    [1] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.26

    [2] Ibid, p.27

    [3] Ibid. p. 49

21. With respect to illegal departures from Sri Lanka DFAT assesses that while those convicted of the offence of illegal departure may theoretically face a custodial sentence, in practice, local sources suggest, a fine is always imposed and typically this fine is LKR 50,000 - 200,000 (AUD350-1,400). Sources suggest those who are unable to pay the fine are permitted to pay in instalments but, if still unable, may be imprisoned for 14 days.[4]

    [4] Ibid, p.48

22. The Tribunal put to the applicant that this country information may reflect that there would not be a real chance of serious harm to him as his father’s past association with the LTTE would not raise his profile to the extent required to attract the adverse attention of the Sri Lankan authorities. Further that the country information may reflect that illegal departure may not in itself result in a real chance of serious harm. The applicant responded that his father’s coerced work for the LTTE was not ordinary and as such raises his profile.

23. In addition to the evidence given at hearing the Tribunal had regard to the applicant’s representative’s written submission received on 18 August 2022. It was put to the Tribunal that in reality reported improvements in Sri Lanka are not materialising and that any person with a past history of LTTE involvement or sympathy is still at risk of serious harm. It was submitted that the applicant’s lengthy stay away from Sri Lanka and his father’s claimed involvement with the LTTE as [an occupation 1] would result in an adverse profile being drawn of him resulting in a real chance of serious harm to him by the Sri Lankan authorities upon his return to Sri Lanka. 

24. With respect to the current political situation there appears to have been a recent significant erosion in human rights gains made under the previous Sirisena Government (2015-2019) with the re-emergence and power gain of the Rajapaksa brothers’ government, which is generally considered to have overseen past significant human rights violations in Sri Lanka. DFAT now assesses that progress on accountability for war-era violations is unlikely in the near-term. Local sources, Tamil and non-Tamil, told DFAT that the human rights improvements achieved under the government of Maithripala Sirisena (2015-2019), including in relation to freedom of expression, are now being reversed. Such sources regard the increasing militarisation of the civilian government, the 20^th Amendment’s centralisation of power in the hands of the executive, and the increasing use of the Prevention of Terrorism Act and other means to silence critics, as vindication of their fears.[5] Further, DFAT assesses that the Rajapaksa Government is increasingly intolerant of criticism or political dissent especially with reference to alleged historical abuses.[6] DFAT further assesses that Sri Lankan journalists, investigators, activists and former police officers probing historical abuses face a high risk of official harassment and a moderate risk of violence. DFAT also assesses that Sri Lankans detained by the authorities face a moderate risk of torture. This is especially the case for the poor and criminal elements, and for those who challenge or are perceived to challenge the Government.[7] The Tribunal notes that the recent economic turmoil has placed the Rajapaksa Government under pressure resulting in resignations, however, it is credibly assessed that the essential power structure leading back to the Rajapaksa Government remains largely in place.[8]

    [5] Ibid, p.13

    [6] Ibid, p.30

    [7] Ibid, p.41

    [8] Report of the Office of the United Nations High Commissioner for Human Rights on Situation of Human Rights in Sri Lanka (4 October 2022) pp 2-3

25. The Tribunal has carefully considered the country information with respect to returning Tamil Sri Lankans. The Tribunal accepts the past consistently put evidence that the applicant’s father was performing an unusual coerced [occupation 1] role for the LTEE which came to the adverse attention of the authorities aligned paramilitary wing the EPDP. This plausibly resulted in conflict at the time including the possible deaths of EPDP members. In addition the Sri Lankan authorities would be aware of the length of time that the applicant has been out of Sri Lanka and that he departed illegally. The Tribunal considers that the applicant’s illegal departure and length of time out of Sri Lanka would certainly result in questioning of the applicant upon his return. There is a risk, arising out of this questioning, that the records of the applicant’s father would become apparent causing questions to arise with respect to the risk profile of the applicant and resulting in a term of imprisonment and further questioning. In such circumstances, and when considering the recent country information about the marked deterioration in the human rights situation in Sri Lanka and the risk of torture to persons detained for any length of time by the authorities, the Tribunal concludes that there is a real chance, that is not negligible, that the applicant will be subjected to serious harm for reason of his imputed political opinion.

26. Taking all of the above considerations into account, the Tribunal is satisfied this harm would amount to serious harm as contemplated in the Act. As such, and with regard to the above considerations, the Tribunal finds that there is a real chance of serious harm to the applicant upon his immediate return to Sri Lanka for reason of his imputed political opinion either now or in the reasonably foreseeable future from the Sri Lankan authorities. The Tribunal finds that this would constitute systematic and discriminatory conduct and would amount to persecution. The Tribunal finds that the applicant’s imputed political opinion would be the essential and significant reason for the persecution.

27. 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 country information, that there is no non-state actor that the applicant could access protection from and further 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 with no means of redress as evidenced by the DFAT report which states that:

    No legal mechanism exists to initiate independent investigations for state violence, including extrajudicial killings. Numerous historical cases of extrajudicial killings remain unsolved.[9]

    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.[10]

    [9] DFAT Country Information Report, Sri Lanka, 23 December 2021, p.38

    [10] Ibid, p.41

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

29. In the absence of effective internal protection, the Tribunal finds that the applicant faces a real chance of persecution for reason of his imputed political opinion, if he returns to Sri Lanka now or in the reasonably foreseeable future. As the feared persecution is from the government authorities, and the Tribunal has found that there is a real chance the applicant will be subjected to serious harm 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). In addition, the Tribunal is satisfied that the applicant could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution as per s 5J(3) as adverse political opinion profiling is based upon his illegal departure and length of time out of the country, his father’s sensitive political history and his race as a Tamil man from the North.

30. Finally, 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.

31. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).

    decision

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

   Paul Noonan
   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.

   …