1809620 (Refugee)

[2021] AATA 4741

1809620 (Refugee) [2021] AATA 4741 (13 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1809620

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Justin Meyer

DATE:13 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2021 at 4:39pm

CATCHWORDS

REFUGEE – Protection visa – Vietnam – initial partner visa application affected by fraudulent migration agent – application for protection based on Covid situation in Vietnam – Australian citizen spouse and children – applicant can apply for ministerial intervention – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 351, 417, 425, 499

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 6 April 2018 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 7 November 2017. The delegate refused to grant the visa on the basis that they were not satisfied the that there is a real chance that, if the applicant was returned to Vietnam, they would be persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act. Therefore, the delegate found that the applicant was not a refugee as defined in s5H and the criterion in s36(2)(a) of the Act was not satisfied for this reason. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.

   CRITERIA FOR A PROTECTION VISA

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

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The applicant’s representative wrote in a submission to the Tribunal on 2 September 2021:

   Furthermore, the writer is, on behalf of the review applicant, [name deleted] ("the Review Applicant"), seeking the Member's decision to refer the matter to the Minister due to the circumstances submitted herein.

   In doing so, the Review Applicant is hereby seeking to waive all hearing entitlements. Evidence Provided:

   Scanned copies of the following evidence have been provided to you together with this submission:

   Birth certificate of Review Applicant and current spouse's first child, [Child 1]; and

   Birth certificate of Review Applicant and current spouse's second child, [Child 2]; and

   Citizenship certificate of current [spouse]; and

   Marriage Certificate between the Review Applicant and current spouse; and

   Photographs of the family unit

   Background:

   On the 1st December 2014, the Review Applicant lodged a valid visa application for a UK Partner (Temporary) and BS Partner (Residence) visa on the grounds of being in a spousal relationship with an Australian Permanent Resident - now Australian citizen, [the sponsor].

   At the time, the Review Applicant and Sponsor were represented by a [name deleted], or [name deleted] ("First Man"). However, unbeknownst to the Review Applicant and Sponsor at the time, the First Man was not in fact a registered migration agent, and that he had been using the identity and registered information of an actual agent named [deleted] ("Second Man"). The First Man had set up his own fraudulent immigration service under the identity and registered information of the Second Man - misleading clients into believing that he is a registered migration agent and will provide the contracted work.

   As a result of falling victim to the First Man's scam, the Applicant was not properly represented. They were not informed of any correspondences sent by the Department, including request for further information. Therefore, although the relationship between the Review Applicant and Sponsor was entirely genuine, they were not given the opportunity to provide the requisite information to prove this.

   Consequently, the application was refused by the Department of Home Affairs ("the Department") on 21st of October, 2016. We note that the First Man did not inform the Review Applicant of this information and subsequently, applied for review of the decision to the Administrative Appeals Tribunal ("the AAT") on the Review Applicant's behalf.

   Once again, the First Man did not inform the Review Applicant of any correspondences received by the AAT — including the invitation to attend a hearing. Therefore, the AAT dismissed the application due to non-appearance. The Review Applicant, at all times, remained unaware of the progress and status of her application.

   The Review Applicant's new representative, attempted to save the application by requesting for reinstatement of the application- which was unfortunately unsuccessful.

   After falling victim to the scam and suffering significant and irreversible detriment from the nefarious action of the First Man, an application for a Protection (subclass 866) visa was lodged on the 7th of November 2017. Naturally, this application was refused on the 6th of April 2018.

   An application for review was subsequently lodged with the Tribunal (Case Number: 1809620). However, as above mentioned, we are seeking the Tribunal's decision in affirming the application under review and referring the matter to the Minister.

   Present Circumstances of the Review Applicant

   Albeit the findings of the Department, as a result of misrepresentation by the First Man, the Review Applicant and Sponsor, are and remain in a genuine and continuing relationship since 2013.

   Most relevantly, we note:

   [In] August 2014, the Review Applicant and Sponsor were officially married;

   On [date], their first common child, [Child 1] was born;

   On [date], their second common child, [Child 2] was born.

   The Review Applicant is seeking to validly submit a new Partner visa application with her Sponsor. However, given the refusal of her previous Partner visa application (due to falling victim of a scam), the Review Applicant is unable to validly apply, according to section 48 of the Migration Act 1958 (Cth). As such, we are respectfully requesting that the matter be referred to the Minister's attention.Request for referral to the Minister

   We refer to the President's Direction Conducting Migration and Refugee Reviews, which is given under section 18B of the Administrative Appeals Tribunal Act 1975. Specifically, we refer to paragraphs 16.1 — 16.7 concerning referrals made by members for ministerial intervention. At paragraph 16.1 it finds that:

   "Members should have regard to the ministerial guidelines when considering whether or not a case should be drawn to the attention of the Minister. When a member considers that a case should be brought to the Minister's attention, the member may refer the case to the Department. The member's views will be brought to the Minister's attention by the Department under the guidelines."

   The Minister's Guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J) state that the Minister may consider exercising his discretion in cases that exhibit one or more "unique and exceptional circumstances". The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. Most relevantly, they include:

   "Strong compassionate circumstances that if not recognised would result in ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family unit is an Australian citizen or Australian permanent resident".

   We respectfully submit that three out of four members of the Review Applicant's family unit are Australian citizens. This includes the Review Applicant's husband [and] their two Australian children ([Child 1] and [Child 2])

   The impact of the Review Applicant being unable to validly apply for an onshore Partner application would mean that she would have to depart Australia — to Vietnam. This will in turn result in ongoing and irreversible harm and continuing hardship to the Australian citizens, and the overall Australian family unit

   Firstly, if the Review Applicant were to depart Australia this will, in all situations, result in a separation of a family unit where the children will be deprived of either their mother (should the children remain in Australia) or their father (should the children follow their mother back to Vietnam).

   The children during the crucial age of [age range] require the constant care and love of their mother. The children are at the age where they can distinguish between the presence of their mother and their father and any absence of a parent will be emotionally traumatising for them — especially in cases where they have been connected with their parents their entire childhood thus far. During the upbringing of the children, the father has the role of going to work on a daily basis to support the family. Therefore, the Review Applicant takes on the full-time role of looking after their children and being there to support them emotionally. A sudden deprivation of contact between the Review Applicant and her children (without knowing when they will be reunited) will lead to a negative, irreversible impact on the part of the Australian children, and the overall family unit.

   It is also detrimental for the children if they were to be left with no choice but to depart Australia without their father, who is their main financial support. The Review Applicant will struggle to singularly support her two young children in the absence of the father, especially in a country that does not provide welfare support. The Review Applicant has strong ties to Australia, having lived here for over 5 years. Thus, it would create continuing and significant hardship on herself and for her two children to set-up a life in Vietnam (or anywhere else besides Australia).

   Secondly, we note that the Guidelines contemplate that the Minister would be informed on relevant issues including the following:

   Circumstances that may bring Australia's obligations under the Convention on the Rights of the Child into consideration, including the best interest of the child- which must be treated as a primary consideration, but can be balanced against other primary considerations.

   Circumstances that may bring Australia's obligations under the International

   Covenant on Civil and Political Rights into consideration, particularly issues of family unity, which can be balanced against other rights and interests including the integrity of Australia's migration programme.

   We respectfully submit that these issues are fundamentally relevant in the present case, due to the existence of the two Australian child.

   Further, while it is common for other applicants in similar situations to have been able to depart and face temporary hardship, despite what other visa applicants may have faced in the past, each case should be decided on a case-by-case basis. Notably, given the Coronavirus (COVID-19) pandemic, the separation of family, will, in effect cause significant hardship on a wider and more impactful scale. Notwithstanding also, the very real possibility of a death occurring as a result of contracting the disease during international travels.

   From the start of the pandemic up until this point, the situation is alarmingly unsettling. At the start of the year, Vietnam had approximately 1500 confirmed cases. Over the past few months, this number has increased exponentially. As of the date of 30 August 2021, Vietnam reported a total of 449,489 cases with the daily number of positive cases at 13,004. As of August 30, 2021 the reported deaths due to coronavirus were a total of 11,064.3

   In the face of uncertainty of the current pandemic, the Review Applicant requests that her matter be referred to the Minister for consideration to allow her to validly apply for a Partner visa onshore so that her family can remain, safely, together during the processing period.

10. The applicant has waived her hearing right per s.425 of the Act:

    (1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

    (2)  Subsection (1) does not apply if:

    … (b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it;

11. The applicant's protection claims can be summarised as follows:

    ·She ‘is now married with [a] Permanent Citizen and we have child in common. I hope that I can stay in Australia to take care of my family. I could not live without them.’

    ·The applicant came to Australia initially to study, but ‘can no longer live’ in Vietnam. She has not experienced harm in Vietnam, but believes she will be harmed or mistreated if she returns to Vietnam. She does not think she could live there, or that the government can help her.

12. There was no further advancement of these claims or any more detail to either the department the Tribunal.

13. There is no evidence or inference that she will be harmed because of her religion, race, political opinion, nationality or membership of a particular social group. There is no information to suggest the applicant will be targeted on their return to Vietnam for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act. I am not satisfied the that there is a real chance that, if the applicant was returned to Vietnam, they will be persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s5H and the criterion in s36(2)(a) of the Act is not satisfied for this reason.

14. I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vietnam, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act. I cannot see from the submission that she will be arbitrarily deprived of her life, the death penalty will be carried out on her, she will be subjected to torture or she will be subjected to cruel or inhuman treatment or punishment, or that she will be subjected to degrading treatment or punishment.

15. The applicant has not given any detail on what she claims to fear in Vietnam.

16. Giving consideration to the most recent DFAT report on Vietnam[1] I note the following quotations:

    [5.5]

    DFAT assesses that the military has a strong ability to provide protection to civilians, but is highly influenced by the CPV.

    [5.9]

    DFAT assesses that police have a limited ability to provide protection to civilians, particularly at the commune level, are vulnerable to corruption, and typically act with impunity

    [5.15]

    DFAT assesses that the judicial system in Vietnam has limited capacity to provide state protection, and citizens generally have limited access to legal counsel. In cases that are politically sensitive, the judicial system cannot be relied upon to provide an independent and fair outcome. DFAT further assesses that corruption within the judicial system may impinge on the prospects for a fair trial.

    [1]  DFAT Country Information Report Vietnam 13 December 2019

17. There is a functioning police and justice system in Vietnam. While there are limitations in this system, the country information above indicates that the police, armed forces and courts are effective in maintaining public order. There is no evidence before me that the applicant would unable to obtain assistance on issues should she need it.

18. These claims were not pursued meaningfully at any stage from a protection visa perspective and I find that there is no basis for accepting that the applicant has a well-founded fear of persecution or a real chance of significant harm, from these or any other residual or imputed claims.

19. The decision under review therefore should be affirmed.

20. It was requested that the Tribunal “refer the matter to the Minister for his personal intervention under s 425 of the Act with a recommendation that the Minister in the face of uncertainty of the current pandemic, allow her to validly apply for a partner visa onshore so that her family can remain, safely, together during the processing period.”

    Ministerial Intervention

21. The Tribunal has considered the applicant's case and the ministerial guidelines relating to the discretionary power set out in the Minister's guidelines regarding Ministerial intervention under s.351, s.417, and s.501J of the Act, but has decided not to refer the matter.

22. The Tribunal notes that it is open to the applicant to directly request the Minister to personally intervene in his matter, pursuant to s.417 of the Act.

1. In examining the Ministerial guidelines regarding requesting the Minister to personally intervene, the Tribunal is also confident the applicant's circumstances had been anticipated by the relevant legislation and the Tribunal's application of relevant provisions is not an unintended consequence of the legislation.

   CONCLUSION

2. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

4. 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 the criteria in s.36(2).

   DECISION

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

   Justin Meyer
   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.

   …