1807117 (Refugee)

[2022] AATA 2175

1807117 (Refugee) [2022] AATA 2175 (25 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1807117

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Jessica Henderson

DATE:25 May 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 25 May 2022 at 3:13pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – imputed political opinion – ethnic Tamil imputed as supporter of LTTE – harassment and detention by police and security forces – imprisonment and mistreatment by Sinhalese prisoners – workplace harassment and abuse – internal displacement – deafness, speech impairment, cognitive impairment and physical and mental health – consistent and credible claims and evidence – country information – decision made without hearing necessary – decision under review remitted

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

CASES
Sundararaj v MIMA [1999] FCA 76
SZQPA v Minister for Immigration [2012] FMCA 123

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 Home Affairs on 2 March 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 Sri Lanka, applied for the visa on 2 February 2017. The delegate refused to grant the visa on the basis that:

a.the applicant did not have an ongoing profile of interest as an LTTE supporter or member when he departed Sri Lanka;

b.there was no barrier to the applicant accessing mental health services in Sri Lanka;

c.notwithstanding his mental health condition, the applicant was unlikely to display violence or aggression towards Sri Lankan authorities;

d.if the applicant did display violence or aggression then his behaviour would be identified as being the result of a mental health condition and reasonable force to protect the public or the authorities would not amount to serious harm;

e.as he was not a person of interest to the Sri Lankan authorities for any reason when he left the country, there was no evidence to suggest that the applicant would face serious harm due to his time spent outside Sri Lanka or his status as a failed asylum seeker;

f.there was no evidence to suggest that the applicant would be persecuted due to his religion; and

g.if the applicant’s claims were considered cumulatively, there were not substantial grounds for believing that the applicant would experience significant harm on his return to Sri Lanka.

3.    The applicant appeared before the Tribunal by video-link briefly on 28 March 2022.  The hearing was to assess how the matter might proceed, given that at that time it was not possible to hold an in-person hearing due to Covid-19.  As a result of that brief hearing, the Tribunal formed the view that it would not be possible to afford procedural fairness to the applicant if the hearing were held by video due to his deafness, the lack of clarity of the video for the purpose of lip-reading, the applicant’s inability to speak English, and the applicant’s mental health issues. 

4.    As an in-person hearing with an interpreter was not possible at that time, the Tribunal has proceeded to consider the matter on the papers, with a view to determining whether a hearing is necessary given the consistent findings by the department that the applicant is a credible witness whose evidence has been accepted.  For the reasons that follow, the Tribunal considers that a decision on the papers is reasonable in the circumstances.

5.    The applicant was ably represented in relation to the review by [Ms A] of [Lawyers]. 

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.

1. 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).

2. 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.

3. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of persecution for the essential and significant reason or reasons that he holds or may be imputed with LTTE political views, has previously been held on suspicion of LTTE connections, has serious mental health conditions, is deaf and has an associated speech impediment, and/or is Roman Catholic.  

2. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

Background

1. The applicant is a [Age]-year-old male citizen of Sri Lanka, who claims to be of Tamil ethnicity and Roman Catholic faith.

2. The applicant says that he left Sri Lanka in 2008 and travelled first to [Country 1] and then [Country 2].  In or around December 2009 the applicant says that he departed [Country 2] for Australia on a boat which was intercepted by the Australian Navy.

3. The applicant arrived at Christmas Island [in] December 2009.  He was found to be an unlawful non-citizen and detained under section 189(3) of the Act.

4. On 4 June 2010 a Refugee Status Assessment (RSA) was conducted which concluded that the applicant did not engage Australia’s protection obligations. 

5. The Tribunal has had the benefit of the RSA record (RSA Record) which provides a helpful timeline of the applicant’s history. The RSA Record helpfully includes the following:

It was evident at the RSA interview that the claimant has a genuine subjective fear of persecution based on decades of harassment, mistreatment and detention/imprisonment at the hands of the Sri Lankan Police, Sri Lankan Army and Singhalese people for reasons of his Tamil ethnicity and the imputed political opinion that this ethnicity holds of being involved with or a supporter of the LTTE.

1. The RSA assessor did not raise any credibility issues with the applicant’s evidence, which appears to have been accepted in its entirety, but found that the applicant no longer had a profile that would bring him to the attention of the authorities and he would not be at real risk if he returned.

2. The applicant applied for Independent Merits Review (IMR) which was initially refused.  The Tribunal has had the benefit of the 2011 IMR Reviewer’s Reasons (2011 IMR Reasons), which helpfully includes a summary of the applicant’s original claims (and the case manager’s reasons for rejection) in the following terms:

The claims were summarised by the case officer as follows:

1.    Claimant is a [Age] year old male from Colombo in Sri Lanka. He is a Roman Catholic, has never been married and has suffered from a hearing impairment since birth. Both of his parents are deceased. His older brother [Mr B] is married to a Singhalese lady and resides in Colombo. This brother became estranged from the family when he married a Singhalese family and since then the claimant has had no contact with him. His second oldest brother, [Mr C]. died of natural causes in 1986. In 1986 his brother [Mr D] was walking near an army camp in [Location 1] and was shot and killed by the Sri Lankan Army. In 1989 his brother [Mr E] was massacred by machete in [Location 2] by the Sri Lankan Army. The claimant claims to have a cousin in each of the following places – [three named countries] and Christmas Island IDC.

2.    Between 1986 and 2008 he was constantly harassed by the police and other security forces for being Tamil, and on suspicion of being involved with the Liberation Tigers of Tamil Eelarn (LTTE), and was detained on numerous occasions.

3.    In 1986 whilst studying English at [University] in Colombo he was taken by Singhalese civilians to the [Location 3] Army camp and handed over to the [Location 3] police. The police accused him of being a 'Tamil Tiger' and detained him for one week. After release the police used to come to his room at the university and check up on him and because of this harassment he decided to abandon his studies and move back to the family farm in [Location 4].

4.    In January 1987 he returned to Colombo at took up a position as [Occupation 1] at [Employer]. He experienced harassment and abuse from the Singhalese employees including regular beatings. In July 1987 he decided that he could not put up with the abuse any longer and once again returned to the family farm in [Location 4].

5.    From December 2000 to December 2003 he was displaced due to the constant fighting and shelling in and around [Location 4]. He moved throughout northern Sri Lanka during this period staying in refugee camps, schools and vacant houses. During this period he was assisted to subsist through using food stamps provided by the government co-operative.

6.    In December 2003 he returned again to Colombo and took up a position as [an Occupation 2] for [Employer 2], a [Employer sector]. He experienced no difficulties in Colombo until 2007 when he was detained by police in the [Location 5] district for one week on suspicion of being involved with the LTTE.

7.    In April 2008 the [Location 6] police came to [Workplace 2] factory where he was working and arrested him on suspicion of being connected with the LTTE. The claimant alleges that he was arrested because the Singhalese people were spreading rumours at the time that all Tamils were part of the LTTE. He was taken to the police station and the police questioned him, wrote notes about him and beat him up over the course of one hour. He was then taken to the [Location 7] courts and sentenced to imprisonment in [Location 8] Prison. In prison the Singhalese prisoners mistreated him by constantly beating him up and making him sleep in the toilet area. He didn't report this abuse to the authorities because he was fearful that they would also beat him. He was never mistreated by the Sri Lankan authorities who ran the prison. Throughout the four months that he was imprisoned he was taken to the courts on numerous occasions although never once asked by the courts to state his case. After four months imprisonment when again he was taken to the courts he was released because the courts said that there was no evidence to suggest that he was part of the LTTE. As he had no money and it was expensive to live in Colombo he decided to go to Vavuniya as he knew that the International Committee of the Red Cross (ICRC) was there and could possibly assist him.

8.    In July 2008 he told his story to the ICRC in Vavuniya and just two days after doing this. the Vavuniya police came to the lodge where he was staying and arrested him on suspicion of being associated with the LTTE. He was taken to the police station and put in a cell where beaten by police and questioned. He was then taken to a court and sentenced to imprisonment in [Location 10] prison. The prison contained mostly Tamil prisoners. He was not mistreated by the prisoners or Sri Lankan authorities whilst in prison. Throughout the three months that he was imprisoned he was taken to the courts on numerous occasions although never once asked by the courts to state his case. After three months imprisonment when again he was taken to the courts lie was released because the courts said that there was no evidence to suggest that he was part of the LTTE. Upon release he went straight to Colombo to stay at his auntie's house and make arrangements to flee Sri Lanka.

9.    Based on his history of detention and imprisonment in Sri Lanka the claimant fears that if he was returned to Sri Lanka he will again be tortured and detained because the police still suspect Tamils of being involved with the LTTE and in particular Tamils who left Sri Lanka when he did (December 2008). He believes that the Singhalese people who resent the Tamils will tell the authorities that he has connections with the LTTE and for that reason the police and or army will harm him and he will be left in a prison to perish.

10.  The claimant asserts that the security forces in Sri Lanka cannot protect him because they are the agencies that will persecute him and they are able to act with impunity and in the knowledge of the government.

11.  The claimant asserts that there is no safe place for him to reside in Sri Lanka.

12.  Through the claimants representative, IAAAS agent [name deleted], the claimant also asserts that he is psychologically disabled and hearing impaired and that disabled people in Sri Lanka are routinely targeted for abuse by police including a recent incident in October 2009 when police were videoed severely beating a mentally unstable Tamil man to death in Colombo. He also fears that if he is returned he will be harmed by the Sri Lankan Police and Sri Lankan Army because he is disabled.

The case manager decided that the claimant was not a refugee essentially because he found that the situation for Tamils post May 2009 has changed and he does not have a profile that would indicate a real chance of persecution on return.[1]

[1] 2011 IMR Reasons pp3-4

1. Relevantly, the 2011 IMR Reasons included the following description of the IMR Reviewer’s difficulties communicating with the applicant:

The claimant's hearing disability necessitated the intervention of the interpreter in rephrasing my questions more than once and then confirming what the claimant had replied since his speech appeared difficult to understand. On a number of occasions his cousin had to intervene to reformulate questions put to the claimant or answers provided by him. His cousin also required the services of an interpreter. I was able to establish that the claimant had been transferred to mainland Australia at some point where he had been examined by medical personnel. I asked the adviser to ascertain whether any medical reports were available and if so to supply these to me. I wished to establish whether the communication problems were only due to the hearing disability or whether there were other relevant health problems. At the date of this recommendation I have not received any medical record or report.[2]

[2] 2011 IMR Reasons p 4

1. The 2011 IMR Reviewer accepted the applicant’s evidence but found that the applicant’s history of arrest and detention did not give rise to a real chance of persecution, because of changes which had occurred since the end of the civil war, and that his “evident” “communication difficulties” had not prevented him holding responsible work roles and relocating successfully.

2. After a successful judicial review application at the Federal Circuit Court, the applicant’s matter was remitted and on 8 August 2012, an IMR Reviewer found that the applicant met the criterion for a protection visa in s 36(2)(aa) of the Migration Act 1958. Accordingly, she recommended to the Department that the applicant be recognised as a person to whom Australia has protection obligations.

3. The Tribunal has the benefit of the detailed reasons for decision of the 2012 IMR Reviewer (2012 IMR Reasons), which contain significant background information obtained from both the applicant and his supporting cousin in Australia. 

4. The 2012 IMR Reasons included the following assessments under the heading “Credibility”:

Mention has been made of the memory problems suffered by this claimant. However, over the lengthy course of his refugee determination, a consistent story has emerged although there may have been minor variations in the details from the on-entry interview to the more comprehensive later interviews. The claimant presented as very keen to answer all my questions and assist in any way. I have no concerns about his credibility.

I note that the claimant's cousin, his carer, who also attended my hearing, was frank and cooperative. Since the hearing, I have obtained and read parts of his file, with his permission, and I have found no contradictions between the information he gave me at hearing and that recorded in his file. I am satisfied that he is a credible witness.

1. The 2012 IMR Reviewer concluded as follows:

On all the information before me, I am satisfied that there is a real risk to the claimant of being questioned at a police checkpoint or similar (like many other Sri Lankans), and then being subject to cruel or degrading treatment or punishment because of his difference. This difference - both his physical disability of deafness and his cognitive impairment caused by impeded language development and exacerbated by brain damage caused by physical assaults - will cause him to respond in a way not in accordance with the expectations of the police or other authorities. It may be a lack of response; it may be an inappropriate response; it may even be a violent response on the claimant's part. In any case, it is a "wrong" response and in the past, this has been rebutted by physical violence and, on several occasions, detention. As a result, the claimant suffers significant harm. I am satisfied that there is a real risk that this will happen again and that the claimant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia.

1. On 24 November 2015 the applicant was invited to apply for a TPV or Safe Haven Enterprise Visa (SHEV) visa.  In September 2016 the applicant was referred to [Legal services provider] under PAIS to receive assistance applying for a TPV/SHEV.

2. The applicant applied for the SHEV on 5 January 2017. He was eligible for the streamlined assessment process, as a result of which there was no departmental interview.

3. On 27 June 2017 the applicant sent a statement of claims to IMA Protection Support under cover of a letter from his then representative (2017 Claims Statement).  His claims included:

   a.He was born deaf.  He uses a hearing aid but it gives him very little hearing and he is reliant on lip reading to fully comprehend what is said to him.

   b.He has neurological problems and struggles with his mental health. He receives a fortnightly injection and takes a variety of different mental health medications.

   c.He fears harm at the hands of the Sri Lankan authorities such as the CID, police, the army and other authorities due to:

   i.Tamil ethnicity;

   ii.Being a disabled person in Sri Lanka; and

   iii.His inability to communicate effectively;

   d.He is afraid that he will be unable to obtain the level of health care he requires; and

   e.He will be unable to support himself.  He has difficulty travelling even relatively short, familiar distances by himself without becoming confused, and his cousin currently takes him to his appointments and otherwise cares for him.  He has no-one in Sri Lanka to care for him.  He has only 2 relatives in Sri Lanka; an elderly aunt and an estranged brother.

4. The 2017 Claims Statement set out the following harm that the applicant claims to have previously suffered in Sri Lanka:

   a.Harassment by the police and security forces due to Tamil ethnicity;

   b.Detention in 1986 during which he was accused of being LTTE;

   c.Detention in 1990 on two occasions (each for a period of a week) by [Location 11] police and [Location 12] police;

   d.Detention in 2007 in [Location 5];

   e.Detention in 2008 by the [Location 6] police, which involved him being in jail at [Location 8] from April to July.  During his time in jail he says that he was repeatedly beaten and accused of being and being in contact with LTTE.  No charges were laid and he was eventually released by court order.

   f.Subsequent detention by Vavuniya police and incarceration for 3 months in [Location 10] prison.

5. He says that during each period of detention he tried to explain that he could not hear or understand what was happening, but that he was struck for not answering questions.

6. The 2017 Claims Statement is consistent with the applicant’s claims as recorded in the 2011 and 2012 IMR Reasons, although the latter includes some additional detail about the circumstances of his detentions and releases and provides an additional detention date in 2003. 

7. The Tribunal has been provided with submissions from the applicant’s current lawyers dated 22 March 2022, together with a bundle of documents related to the application (2022 Submissions and Bundle of Documents).  They set out a background that is consistent with the information that was provided to each of the earlier reviewers.

8. The 2022 Submissions press the following key issues:

   a.Whether there is a real chance or risk of the applicant being interrogated and detained by the Sri Lankan authorities upon his return to Sri Lanka;

   b.Whether there is a real chance or risk that such interrogations and detention would give rise to persecution or significant harm; and

   c.If the applicant, as a sufferer of paranoid schizophrenia, is detained and interrogated for up to several days by the Sri Lankan authorities, will this amount to significant harm?

9. The submissions press the applicant’s other vulnerabilities, in particular that the applicant’s overall cognitive impairment and communication difficulties are properly taken into account in determining the risk of harm to the applicant arising from even a relatively brief period of detention.

Is it necessary for the Tribunal to hear viva voce evidence from the applicant?

1. The applicant’s evidence and claims have been broadly consistent since his arrival in 2009.  The minor variations are consistent with the applicant’s communication difficulties, and do not impact his credibility.  Three separate assessors have determined the applicant to be a credible witness and have accepted his timeline of events. 

2. The Tribunal is of the view that, given the applicant’s hearing, speech and language difficulties, the Tribunal could not reasonably make an adverse credibility finding against the applicant on the basis of the applicant’s body language, expression or inflection before the Tribunal.

3. There is no evidence before the Tribunal to suggest that the applicant is not a credible historian. The documentary evidence contained in the 2022 Bundle of Documents supports the applicant’s version of events and there is no evidence that contradicts any aspect of the applicant’s story, nor any indication that he has previously been found to be untrustworthy.

4. The Tribunal has no specific questions for the applicant arising from the thorough account that has already been provided by the applicant in written form and as recorded in previous interviews and evidence. The Tribunal accepts that there are minor discrepancies, but not more than would ordinarily occur in a witness’ account over the course of many years of questioning.

5. The Tribunal is mindful of the counsel of Burchett J that it is necessary to:

… understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognised, and recognised by much more than lip service.[3]

[3] Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5]

1. To those problems, the applicant adds some serious medical conditions, including very significant mental health difficulties, such that the Tribunal would require an up-to-date medical report confirming that the applicant was, in the view of his current practitioners, fit to give evidence before allowing him to do so.  The Tribunal’s reasoning and findings with respect to the applicant’s health are dealt with later in these reasons.

2. In the circumstances, it is not clear how the applicant’s viva voce evidence could meaningfully affect the Tribunal’s findings, and there appears to be little merit in either a video or significantly delayed in-person hearing.

3. The Tribunal is satisfied that it is appropriate to proceed with a determination on the papers.

Findings of fact about the applicant’s history

1. The Tribunal accepts the applicant’s history as summarised at (1) – (8) in the 2011 IMR Reasons (quoted in paragraph 20 above) and makes findings of fact in those terms.

2. The Tribunal accepts the finding of the 2010 RSA to the effect that the applicant has a genuine subjective fear of persecution based on decades of harassment, mistreatment and detention/imprisonment at the hands of the Sri Lankan Police, Sri Lankan Army and Singhalese people for reasons of his Tamil ethnicity and the imputed political opinion that this ethnicity holds of being involved with or a supporter of the LTTE.

3. The Tribunal will proceed to consider the evidence as to the applicant’s current medical conditions and the country information about Sri Lanka.

Medical evidence

1. The Tribunal has received the following medical evidence:

   a.Letter from [Dr G], Psychiatrist, dated 24 November 2010.

   b.Special Needs Assessment from the IHMS.

   c.Neuropsychological assessment summary of [Dr H], undated but related to the applicant’s assessment on 27 July 2011 ([Dr H] Assessment).

   d.Letter from [a] Senior Medical Officer, [Medical Centre], dated 2 November 2012, reporting that the applicant was seen ‘responding to unseen stimuli’ and was ‘obviously having some type of psychotically driven behaviour’.  The letter details a specific drug regime that is still being perfected.

   e.[Hospital] Inpatient Discharge Letter relating to admission for the period 19 February 2014 to 17 March 2014 ([Hospital] Discharge Letter).

   f.Letter from [Health Service] to [Legal services provider] dated 14 February 2018 setting out the applicant’s physical and mental health issues and the details of his treatment and practitioners confirming the applicant’s history of paranoid schizophrenia and other physical co-morbidities including hypertension, hypothyroidism, diabetes mellitus, bilateral deafness and history of skull fracture ([Health service] 2018 Letter).

   g.Medical Report of [Dr J] dated 20 March 2022 confirming that he has treated the applicant for type 2 diabetes, schizophrenia, hypothyroidism and benign positional vertigo, all of which are currently under control with appropriate medications.

2. The [Health service] 2018 Letter includes the following summary:

[The applicant]'s first contact with Mental Health Services in Australia was whilst he was in detention camp in Darwin and he has been a patient of Western Australian [deleted] Health Services since 2009. His illness is characterised by persecutory delusions, unintelligible speech, disorganisation and poor sleep when in a relapsed state. He is currently mentally stable on treatment; however I did make changes to his psychotropic medications during my review on 14/02117 as he was developing severe side effects to his previous medication. He is now on [named medication] in the morning and tablet [name] in the evening.

1. On the basis of the report of [Dr J] the Tribunal finds that the applicant suffers from:

   a.Type 2 diabetes;

   b.Schizophrenia;

   c.Hypothyroidism; and

   d.Benign positional vertigo.

2. The Tribunal accepts that the applicant has a congenital hearing impairment and has relied on lip reading from an early age.[4] 

   [4] International Treaties Obligations Assessment for Irregular Maritime Arrivals p1

3. The Tribunal takes notice of the negative effect of learning speech through lip reading, without the benefit of hearing the sound that the words usually make.  The Tribunal accepts the evidence of each of the various delegates that have interviewed the applicant, to the effect that the applicant’s speech is very difficult to understand. The Tribunal finds that the applicant’s unusual speech rises to the level of a serious impediment to oral communication.

4. The Tribunal has also helpfully been provided with the following articles from mainstream peer-revied medical journals that provide detail about the applicant’s diagnosed schizophrenia:

   a.‘Cognitive impairment in schizophrenia: relationships with cortical thickness in fronto-temporal regions, and dissociability from symptom severity’ Alkan, Davies and Evans, NPJ 2021;

   b.DSM-IV to DSM-5 Schizophrenia Comparison Table, extracted from Substance Abuse and Mental Health Services Administration. Impact of the DSM-IV to DSM-5 Changes on the National Survey on Drug Use and Health [Internet]. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2016 Jun;

c.‘Royal Australian and New Zealand College of Psychiatrists clinical practice guideline for the management of schizophrenia and related disorders’, Galletly et al NAZJP 2016;

d.‘Models to predict relapse in psychosis: a systematic review’, Sullivan et al, PLOS;

e.‘Rates and Predictors of Relapse in First-Episode Psychosis: An Australian Cohort Study’, Brown et al, Schizophrenia Bulletin Open 2020;

f.‘Lifetime relapse and its associated factors among people with schizophrenia spectrum disorders who are on follow up at Comprehensive Specialized Hospitals in Amhara region, Ethiopia: a cross‑sectional study’, Moges et al, Int J Ment Health Syst, 2021;

g.Relationship between stressful life events, coping styles, and schizophrenia relapse’, Wang et al, International Journal of Mental Health Nursing, 2021; and

h.‘Aggression and Impulsivity in Schizophrenia’, Pompili and Fiorillo, Psychiatric Times, 2015;

1. The Tribunal notes a number of reviewed open-access online articles were also provided, together with selected pages from the APA Practice Guideline for the Treatment of Patients with Schizophrenia.

2. On the basis of the medical literature, the Tribunal accepts that schizophrenia is as a chronic brain disorder that affects cognition, perception, and behaviour. It is characterized by episodes in which a person experiences ‘abnormalities’ in two or more of the following five symptom areas:

   a.Delusions (fixed beliefs that are not amenable to change in light of conflicting evidence);

   b.Hallucinations (perception-like experiences that occur without an external stimuli);

   c.disorganized thinking (including speech);

   d.grossly disorganized or catatonic behaviour (behaviour ranging from childlike silliness to unpredictable agitation); and,

   e.negative symptoms (i.e. diminished emotional expression or avolition).[5]

   [5] b.     DSM-IV to DSM-5 Schizophrenia Comparison Table, extracted from Substance Abuse and Mental Health Services Administration. Impact of the DSM-IV to DSM-5 Changes on the National Survey on Drug Use and Health [Internet]. Rockville (MD): Substance Abuse and Mental Health Services Administration (US); 2016 Jun;

3. The Tribunal also accepts on the basis of the literature that there is no cure for schizophrenia. Clinical treatment protocols recommend implementing individualized treatment plans consisting of pharmacological and psychosocial interventions, typically involves anti-psychotic medication and atypical antipsychotic medication for severe cases of schizophrenia. Long-acting anti psychotics are prescribed and injected where individuals have a poor adherence to medicinal treatment.

Country Information about Sri Lanka

1. The DFAT Country Information Report for Sri Lanka dated December 2021 does not contain any useful analysis of the treatment of the disabled in Sri Lanka.  It does, however, contain the following helpful information:

   a.Sri Lankan law does not explicitly provide persons under arrest and detention the right to an interpreter.[6]

   b.Access to redress through the police, judiciary and the HRCSL may be limited, in practice, by linguistic barriers.[7] Language remains a significant barrier to effective policing.[8]

   c.Most members of the Sri Lanka Police, including in Tamil-populated areas, are Sinhalese, and do not speak Tamil.[9]

   d.An absence of language skills can act as a barrier to internal relocation for those Sri Lankans for whom Sinhala is not their first language, as it may limit access to education and employment in some parts of the country.[10]

Is there a real chance that the applicant will be interrogated and detained by Sri Lankan authorities upon his return to Sri Lanka?

[6] DFAT Country Report for Sri Lanka at [4.19]

[7] DFAT Country Report for Sri Lanka at [5.1]

[8] DFAT Country Report at [5.3]

[9] DFAT Country Report for Sri Lanka at [5.2]

[10] DFAT Country Report for Sri Lanka at [5.14]

1. The UK Home Office: Country Policy and Information Note, Sri Lanka: Tamil Separatism (2020) reports that “[a]vailable evidence suggests that whilst Tamils may sometimes be subjected to discrimination, they are unlikely to face persecution based on their ethnicity alone” however people returning to Sri Lanka after a long period of absence, as here, are, irrespective of their ethnicity, likely to be questioned on arrival by immigration officials and where someone has had previous links to the LTTE they may be questioned further.[11]

   [11] At [2.4.13]

2. The DFAT Country Report for Sri Lanka confirms that returnees travelling on temporary travel documents would be subject to a police investigative process on their return to Sri Lanka to confirm their identity, which “often involves interviewing the returning passenger, contacting police in their claimed hometown, contacting claimed neighbours and family, and checking criminal and court records.”[12] 

   [12] DFAT Country Report for Sri Lanka at [5.20]

3. The Tribunal accepts that the applicant does not presently hold a valid Sri Lanka passport, nor any paperwork that would enable him to obtain one from Australia.  The applicant would therefore be travelling back to Sri Lanka on a temporary travel document.

4. It is clear from the Tribunal’s findings above that the applicant has been a person suspected of LTTE links over a prolonged period of time, notwithstanding that there was insufficient evidence to convict him. A background check of the applicant conducted by the authorities is likely to reveal that the applicant has repeatedly been suspected of LTTE involvement in the past.

5. The Tribunal accepts that the applicant has not been convicted of LTTE involvement in the past.  It is not correct to say, however, that he has been cleared of suspicion as a of any LTTE links as a result of past investigations into him; on each occasion it is clear that the release has been on the basis of insufficient evidence to warrant continuing to detain him.  The Tribunal considers that there is a real chance that the applicant’s history of being suspected of LTTE involvement will result in a longer period of detention and interrogation than might otherwise have been the case, whilst the scope of previous suspicions and the basis on which he was released are investigated.

6. The Tribunal finds that there is a real chance that the applicant would be detained and interrogated on his return to Sri Lanka at the airport or another location so that the Sri Lankan authorities could satisfy themselves about his identity, activities and intentions. 

7. It is not clear how long such a detention or interrogation might last, or what the interrogation might comprise, given the difficulties that the applicant has in communicating and the country information cited above.  It is not clear whether the applicant would be detained whilst a suitable interpreter was located, or whether interrogation would proceed with inadequate interpretation.  Both options make it likely that the applicant will be detained at least overnight.

8. The Tribunal considers that the applicant’s response to interrogation might significantly increase the concerns of the authorities due to a lack of understanding of the effects of his schizophrenia.  The Tribunal accepts the applicant’s submission that persecutory delusions have been found to ‘…contribute to risk of aggression, particularly in the absence of treatment or in association with significant anger.’[13] Individuals with schizophrenia may be withdrawn or disorganized or behave in a disruptive manner. [14]

   [13] ‘Aggression and Impulsivity in Schizophrenia’, Pompili et at, Psychiatric Times 2015

   [14] The APA Practice Guideline for the Treatment of Patients With Schizophrenia p 31

9. The Tribunal considers it more likely than not that any aggression or disruption by the applicant would result, at least, in prolonging the interrogation and detention of the applicant.

Is there a real chance that such an interrogation and detention would give rise to serious harm?

1. In addition to considering the outcome of any investigation into the applicant, the Tribunal must consider the process of interrogation to which the applicant would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities of his identity and that he was not an active LTTE member or supporter, notwithstanding that he has repeatedly been held on suspicion in the past.[15]

   [15] SZQPA v Minister for Immigration & Anor [2012] FMCA 123, per Federal Magistrate Driver (as he then was) at [29]

1. The Tribunal accepts the applicant’s submission that there is a significant body of evidence indicating that any period of interrogation or detention in Sri Lanka might subject an ordinary person to a real chance of serious harm. The UN Committee against Torture has identified ‘torture to be of routine nature… practiced all over the country, mainly in relation to police detentions’ and further, ‘that police use torture during interrogation and arrest regardless of the nature of the suspected offence’.[16] The 2022 Report of the United Nations High Commissioner for Human Rights reports that the High Commissioner “remains seriously concerned about the repeated incidents of deaths in custody and alleged armed encounters with police.”

   [16] Cited in the 2019 DFAT Report on Sri Lanka at [4.21]

2. Given the real chance that the applicant’s schizophrenia will cause him to respond to questioning in an aggressive or disruptive way, the Tribunal considers the risk of the applicant experiencing treatment rising to the level of torture during what might otherwise be a routine interrogation to be higher than would ordinarily be the case for a person with the applicant’s history and circumstances.

3. The Tribunal understands the risk to be magnified where Sri Lanka’s Prevention of Terrorism Act (PTA)[17] might be invoked.[18]  The PTA was enacted in 1979 as a temporary measure, allowing the authorities to carry out arrests without warrant for “unlawful activities”.[19] It has been universally condemned by human rights NGOs for failing to protect the rights of those detained pursuant to it.[20]  Reforms to the PTA tabled in January 2022 have been criticised by the international community as failing to address the ‘most often abused provisions’ and “the worst features of the law that have led to arbitrary detention”.[21]

   [17] 'Country Reports on Human Rights Practices for 2020 -Sri Lanka', US Department of State, 30 March 2021, p.9, 20210401122412

   [18] Report of the Office of the United Nations High Commissioner for Human Rights on Promoting Reconciliation, Accountability and Human Rights in Sri Lanka (25 February 2022)

   [19]  Prevention of Terrorism (Temporary Provisions) Act (No. 48 of 1979)

   [20] '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013; 'Promoting reconciliation, accountability and human rights in Sri Lanka: Report of the United Nations High Commissioner for Human Rights', United Nations High Commissioner for Human Rights, United Nations Human Rights Council, 25 February 2022, p.9, 20220303152645; 'Sri Lanka: End the use of and repeal the draconian PTA', Amnesty International, 17 February 2022, p.3, 20220218110132 ‘UN Special Rapporteur (Ben Emmerson) onhuman rights and terrorism in Sri Lanka’, Australian Department of Foreign Affairs and Trade, 14 August 2017,  p.2, CISEDB50AD5239; ‘PTA suspended pending passage of new Counter Terrorism Law’, Island, The, 8 February 2017, CXC90406620371;; ‘Locked up without evidence: Abuses under Sri Lanka’s Prevention of Terrorism Act’, Human Rights Watch, 29 January 2018, p.5, CIS7B83941158

   [21] '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013 p15

4. The PTA was used in the period 1983-2009 primarily to target those accused of involvement with the LTTE or other militant groups, and post 2009 is still reportedly used by Sri Lankan authorities to target ethnic Tamils.[22]  The Tribunal considers there to be a real chance that it might be invoked in relation to holding the applicant for interrogation and investigation on his return to Sri Lanka, given his profile and history.

   [22] '“In a Legal Black Hole”: Sri Lanka’s Failure to Reform the Prevention of Terrorism Act', Human Rights Watch (HRW), 07 February 2022, p.8, 20220209162013 p4

5. The Tribunal concludes on the country and medical information that the applicant would be detained on arrival in Sri Lanka at least overnight, and very possibly for 72 hours or more.  During that detention, there is a real chance that the applicant may be subjected to treatment rising to the level of torture.

6. The Tribunal has weighed the applicant’s special vulnerabilities in the assessment of the well-foundedness of the applicant’s fear of persecution.  The applicant has been diagnosed by [Dr K], a Consultant Psychiatrist at [Mental Health Service] as having paranoid schizophrenia characterized by ‘persecutory delusions, unintelligible speech, disorganization and poor sleep when in a relapsed state.[23]

   [23] Letter from [Dr K] to the applicant’s then solicitors dated 14 February 2018

7. A relatively brief disruption to the applicant’s medical regime is associated with a high likelihood of relapse into psychosis with further cognitive decline.[24] Nearly three in every five individuals with schizophrenia spectrum disorders had experienced symptom relapse during their lifetime after they began to take medication. Relapse was more common in individuals with other comorbid mental illnesses, treatment nonadherence, shorter duration of treatment, and stressful life events.[25] There is, in fact, a very clear correlation between relapse and stressful life events.[26]

   [24] ‘Models to predict relapse in psychosis: A systemic review’, Sullivan et al, PLOS 2017 p2

   [25] ‘Lifetime relapse and its associated factors among people with schizophrenia spectrum disorders’ Moges et al, Int J Ment Health Syst, 2021 p5

   [26] Relationship between stressful life events, coping styles, and schizophrenia relapse’, Wang et al, International Journal of Mental Health Nursing, 2021 p6

8. “Stressful life events” is not defined in the literature presently before the Tribunal, but the Tribunal accepts that a period of detention by authorities appears to be captured in the use of the term ‘stressful life event’ as used in the literature.

9. The Tribunal notes that the letter from [Dr G], indicating that the applicant has ‘an acquired brain injury with cognitive impairment’, states that the applicant’s mental health and wellbeing would be ‘seriously jeopardised’ if he were separated from his cousin.[27] The Special Needs Assessment from the IHMS, indicating that on 26 July 2011 the applicant received a brain scan and on 27 July 2011 the applicant was the subject of neuro-psychological assessment, concluded that the applicant had “a degree of impairment with complex needs” but that there was no impediment to the applicant remaining in detention “provided his carer is able to remain with him”.

   [27] 24 November 2010

10. The Tribunal finds that on arrival in Sri Lanka without a valid passport, the applicant would be interviewed and held for a period of investigation.  That investigation would show a history of detention that would increase the suspicion of the authorities, and lead to at least a period of overnight detention.  The Tribunal further finds that the applicant’s inability to communicate would likely prolong both the detention and interrogation. During the latter, there is a real chance that the applicant’s paranoid schizophrenia would manifest in a way that would increase the suspicions of the authorities and potentially cause them to inflict intentional harm rising to the level of torture on the applicant. The Tribunal further finds that, even if the applicant’s cousin were persuaded to accompany him to Sri Lanka and remain with him, they might well become separated in the course of any detention and interrogation process.

11. The impact of a period of overnight detention and interrogation on the applicant could be profound, particularly if he is prevented from taking his medication and/or is separated from his cousin.  The Tribunal finds that there is a real chance that the applicant would experience relapse into psychosis with long term serious effects rising to the level of serious harm.

12. The Tribunal notes that, according to the USSD 2019 report, Tamils suffer systemic discrimination in health services.[28]  It is not clear what, if any, health services would be available to the applicant if he did suffer a psychotic episode.  In any event, the literature consistently reports that relapse in paranoid schizophrenia sufferers is associated with an increase in homelessness, unemployment, social isolation and self-harm.  In the context of relocation to a country in which the applicant has not lived for over a decade, the Tribunal accepts that the impact of a relapse would rise to the level of serious harm.

    [28] USSD, ‘Annual report on HR’ (ss 6 and 1e), 11 March 2020

Refugee nexus reason

1. The Tribunal is satisfied that the essential and significant reason for the applicant being subjected to scrutiny on his return to Sri Lanka would be his membership of the particular social group comprising ethnically Tamil people who have been suspected of LTTE involvement over a prolonged period of time prior to leaving Sri Lanka.  The essential and significant reason for the real chance that the initial scrutiny may be prolonged is the applicant’s membership of the particular social group comprising congenitally deaf, Tamil speaking sufferers of paranoid schizophrenia. 

2. That prolonged detention and interrogation itself gives rise to a real chance of serious harm to the applicant is due in part to the risk of torture during detention and also to the particular vulnerabilities of the applicant.

3. As the agents of harm feared by the applicant in Sri Lanka now and in the reasonably foreseeable future are primarily state agencies, the considerations at s.5LA of the Act do not preclude a finding that effective protection is not available to the applicant anywhere in that country. The Tribunal finds that effective protection is not available to the applicant anywhere in Sri Lanka.

4. 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

1. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…