1806615 (Refugee)

[2024] AATA 4277

1806615 (Refugee) [2024] AATA 4277 (29 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1806615

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:29 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2024 at 3:15pm

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – loaned money from loan sharks – feared harm from the loan sharks – economic problems – was not aware of the claims in his visa application – land dispute – limited anti-government activity – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 423, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 14 April 2016. The delegate refused to grant the visa on the basis that he was not a person to whom Australia owed protection obligations.

3. The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND EVIDENCE

   Country of nationality

10. The applicant travelled to Australia on an apparently genuine Vietnamese passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Vietnam and has been assessed on that basis by the Department. The Tribunal finds he is a Vietnamese citizen and has assessed his claims against Vietnam as the country of nationality and the ‘receiving country’ for the purposes of s.5(1).

    Background

11. The applicant is a [age] year-old-male born in [Village 1] Village, Song Cau, Vietnam. At hearing, he gave evidence that he has 8 siblings. He said that his parents are deceased. He has 4 siblings who remain in Vietnam, 1 in [a country] and 3 in Australia who are Australian Citizens. He is unmarried and does not have children.

12. At hearing, the applicant said that he grew up in [Village 1] and moved to live in Ho Chi Minh City in 1996 after completing High School, where he remained for approximately 9 years. He then returned to live in [Village 1] before travelling to Australia in 2007. His mother remained living at the family home until she passed away in 2022. The family home is still owned by the applicant’s brother who lives in Australia and maintained by his older sister since his mother passed away in 2022.  The applicant gave evidence that he could return to live at the family home in [Village 1], although it is owned by his older brother in Australia who would have to give him permission to live there.

13. The applicant told the Tribunal that after High School, he completed tertiary studies in Ho Chi Minh City from 1998 to 2001. He was subsequently employed for approximately 18 months for a [company]. Prior to travelling to Australia, he worked from approximately 2004 until July 2007 with a [company] in a [role]. He said that he left this job to travel to Australia in July 2007. The applicant has now been in Australia for over 17 years until present. In Australia, he said he gained skills as a [Occupation 1] and has a total of 10 years employment experience as a [Occupation 1]. Most recently, the applicant has operated his own business as a [Occupation 1] since August 2022. The applicant told the Tribunal that he employs 3 Australian Citizens and 2 persons on working visas and had significant turnover in the last financial year. The applicant provided documents to evidence Company Registration in 2022, as well as Business Activity statements for the periods July to December 2023 and photographs of his business premises in Australia.

14. The applicant travelled to Australia on a Visitor Visa on [date] July 2007 valid for stay until [date] October 2007. He remained in Australia unlawfully after the expiry of his visa and applied for a Subclass 866 Protection Visa which is the subject of this review on 14 April 2016. He has remained in Australia on a Bridging Visa associated with the processing of his protection visa and the present review application until the present time.

    Protection Visa

15. The applicant’s claims in his protection visa application lodged on 14 April 2016 can be summarised as follows:

    ·He left Vietnam due to economic problems and he loaned money from loan sharks.

    ·He fears that a loan shark gang will kill him because he cannot repay his debts and he will be unable to survive with no money.  The loan shark beat him and threatened to kill him.

    ·The Vietnamese authorities would not be able to protect him because it is a personal matter and they are afraid of the loan sharks.

16. The delegate refused the application for a protection visa on 22 February 2018 on the basis that he was not a person to whom Australia owed protection obligations.

    Review Application

17. The applicant applied for review of the delegate’s decision on 12 March 2018.

18. On 18 October 2023 the Tribunal sent pre-hearing correspondence to the applicant inviting him to provide any additional information in respect of his claims. On 24 October 2023, the applicant returned the pre-hearing correspondence which restated his claims that he was afraid he would be persecuted by a loan shark gang and that he was afraid to return to Vietnam because the government was unable to control the gangsters. He also indicated hat he wanted to provide more information.

19. The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments. At hearing, the applicant gave evidence that the claims in his protection visa application and referenced in his response notice on 24 October 2023 which claimed that he left Vietnam because he feared loan sharks on return to Vietnam were not his claims and were untrue. The applicant stated that he had never taken out a loan and that he did not fear loan sharks on return to Vietnam. He stated that he did not see the application form when he signed the last page, and upon receiving the Tribunal hearing notice he sought advice and was told about the claims that were included in his application. The applicant told the Tribunal that he was not aware of the claims in his visa application and they were not his claims.

20. At the hearing, the applicant presented new claims to fear harm on return to Vietnam which can be summarised as follows:

    ·    In 2006 the Government demolished part of his family home which they claimed encroached on public land, without paying any compensation.

    ·    He was involved in discussions and had refused to demolish the house. When the Government sent people to demolish the house, he threw stones at them and swore at them.

    ·    He developed an animosity towards the Government and became dissatisfied with their oppression of its Citizens. He joined a group of people online who were also dissatisfied with the Government in Vietnam. He continues carrying hatred towards the Government as to how they handle their Citizens inquiries and dissatisfaction.

    ·    Approximately 3 or 4 years after arriving in Australia, his anti-Government views were expressed in a [social media] post where he put up a video made by members of the group which was against the Government. After this post, the Government authorities spoke to his sister and told her that she should tell him to take it down, which he did.

21. The Tribunal raised with the applicant that section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence, unless it is satisfied that the applicant has a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made. The applicant told the Tribunal that the person he paid to complete the application only showed him the last page of the application form which he signed when he met him in a car. The applicant said that he had then missed an interview with the Department because he claims not to have received an email inviting him to an interview which was mentioned in the refusal decision dated 22 February 2018. He repeated this claim in a letter to the Tribunal dated 16 March 2018. The applicant told the Tribunal that the first time he understood the claims that had been put in his protection visa application was when he received the pre-hearing letter and sought advice. He said that these were not his claims, but had been included by the person who he paid to prepare his visa application. The Tribunal considers that the circumstances surrounding lodgement of the application, coupled with him missing the interview, are such that he had a reasonable explanation for the delay in raising the claim and does not draw an adverse inference as to the credibility of the new claims or information presented.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Analysis, Findings and Reasons

22. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Loan Sharks

23. In his protection visa application, the applicant claimed that he feared that he would be harmed by loan sharks on return to Vietnam. At hearing, the applicant gave evidence that this was not his claim and that he did not take out a loan in Vietnam and did not owe a debt to loan sharks or any other person in Vietnam. The Tribunal accepts the applicant’s evidence given at hearing and finds that the applicant did not borrow money from loan sharks and does not owe a debt to loan sharks. On this basis, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant owing money to loan sharks on return to Vietnam, now or in the foreseeable future.

    Economic conditions / Financial hardship

24. The Tribunal has also considered the economic conditions/financial hardship that the applicant claimed he will face on return to Vietnam. The Tribunal recognises that in Australia the applicant has operated his own business as a [Occupation 1] and that he would have to find new employment and a place to live on return to Vietnam. The Tribunal raised with the applicant that he could return to live in his family home, which the applicant agreed he could do with the permission of his brother in Australia. Given the applicant’s evidence that his brother is an Australian Citizen living in Australia, the Tribunal considers that the applicant would have access to live in the previous family home owned by his brother. The applicant told the Tribunal that only one part of the house was demolished by the Government in 2006 and his mother was living in the house until 2022. The Tribunal also notes that the applicant gave evidence that he was tertiary educated in Vietnam and employed in [specified] roles for a number of years prior to coming to Australia until age [age]. The applicant also gave evidence and provided supporting documents to confirm that he has operated his own [Occupation 1] business in Australia since 2022, and worked as a [Occupation 1] for approximately 10 years in total over his time in Australia. On the basis of the evidence provided, the Tribunal finds that with the applicant’s family support, access to the family home, as well as his skills and experience, he would be well placed to find employment and have accommodation such that he could support himself financially on return to Vietnam.  For the above reasons, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Vietnam, now or in the foreseeable future, for economic reasons or for reason of financial hardship.

    Land dispute and political opinion

25. At hearing, the applicant gave evidence that the reason he left Vietnam was because of a land dispute which resulted in the Vietnamese Government demolishing part of his family home in 2006 which they claimed encroached on public land without compensation. He said that when the authorities came to his house to demolish the property, he swore at them and threw stones.

26. The applicant further claimed that in response to the acquisition of his family property he developed an animosity towards the Vietnamese Government such that he joined a group who were also dissatisfied with the Government’s treatment of its citizens. He said it was an informal group of people he knew online or acquaintances. He said that his activities involved him posting one video on [social media] approximately 3 to 4 years after arriving in Australia (approximately 2010 or 2011). He said the video was from one of the other members of the group and included clips against oppression of citizens, corruption and showed a defamatory image of Mr Ho Chi Minh. The applicant claimed that the authorities contact his sister in Vietnam and asked that he remove the post. He gave evidence that he took down the video as requested by his family members.

27. The Tribunal is willing to accept that the applicant’s family home was subject to a part acquisition and demolition order by the Vietnamese authorities in approximately 2006. The Tribunal accepts the applicant expressed his disapproval of the demolition to the persons who carried out the works, and that he swore at them and threw stones. The Tribunal is also willing to accept that after this incident, the applicant developed an animosity towards the Vietnamese Government, and connected with other persons online who shared these views, leading to him posting one video on [social media] in approximately 2011 which came to the attention of Vietnamese authorities and his family were told to ask him to remove the video post which he did. However, the applicant gave evidence that neither he or his family members have been contacted or targeted for harm by authorities since the request to remove the post in 2011. The applicant also gave evidence that he had not been involved in any other anti-Government activities other than posting the one video in 2011, and the incident where he swore and threw stones when the authorities sent people to demolish his family house.

28. The Tribunal raised with the applicant that his limited anti-government activity and the length of time which has elapsed since his last action in approximately 2011, may lead the Tribunal to conclude that on return to Vietnam there is not a real chance that he would be targeted for harm by the authorities. The applicant said that he did not wish to comment on the matter raised. Given the applicant’s limited anti-government expression in 2006 and 2011, and that the applicant does not claim to have been involved in any further anti-government activity since approximately 2011, the Tribunal finds that he would not engage in anti-government activities on return to Vietnam now or in the foreseeable future or be of interest to the authorities for anti-government political opinions based on his past actions.  For these reasons, the Tribunal finds that the applicant does not face a real chance of serious harm or a real risk of significant harm on return to Vietnam now or in the foreseeable future, for reason of his political opinions related to land rights or anti-Government opinions or for any other reason.

29. For the above reasons, and having considered the applicant’s claims individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will face serious harm on return to Vietnam for the reason of his race, religion, nationality, political opinion, membership of any particular social group or any other reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for the purposes of s5J of the Act.  Therefore, the Tribunal finds that the applicant is not a refugee for the purposes of s.5H(1) and that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

30. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

   DECISION

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

   Melissa Haag
   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.

   …