1814721 (Refugee)

1814721 (Refugee) [2024] AATA 2560 (27 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Nguyet Thi Doan (MARN: 1795946)
CASE NUMBER:  1814721
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:27 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 27 June 2024 at 12:25pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – complementary protection – victim of gang violence who reported gang to police – perpetrators detained then released without charge – applicant threatened – further claims made after representative’s advice – relative an officer in former South Vietnamese army, sent to labour camp and died in suspicious circumstances – employment discrimination and payments of bribes – opinions against government, police and gangs – childhood abuse and mental health – disconnected and unfocussed presentation but detailed and consistent evidence – country information – prevalent police corruption, inaction and links with gangs – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(aa), (2A)(c), (2B)(b), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
MIAC v MZYYL (2012) 207 FCR 211
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Vietnam who applied for the visa on 26 February 2018. The delegate refused to grant the visa on the basis that the applicant was claiming to fear harm as a police informant, which was not a refugee nexus reason, and that there was adequate police protection available to him such that he was not entitled to complementary protection.
The applicant appeared before the Tribunal on 6 May 2024 to give evidence and present arguments. Prior to the hearing he provided the Tribunal with statements from his friends, his wife, his father and his brother in support of his application. He also provided an expert report from a clinical psychologist, who was available to give oral evidence in support of his report at a later hearing if necessary. Subsequent to the hearing the Tribunal summonsed the Department’s related partner visa application file for the applicant, which had not previously been provided to the Tribunal. The Tribunal also gave the applicant an opportunity to file a written statement addressing matters that he had been distressed talking about during the hearing.
The applicant was represented in relation to the review.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] January 2018 and attempted to file an application for a protection visa less than a week later. It was found to be invalid, and a further application was lodged on 26 February 2018.
The initial claims made by the applicant were that he had been a victim of gang violence in Vietnam and had reported it to the police, who had arrested and held the alleged perpetrators for five months before releasing them from detention due to lack of evidence. Upon their release, the applicant claimed that the gang members had gone to his house and tried to kill him and that he had only avoided this death because his neighbours urgently summoned the police causing the gang members to flee. The police were unable to locate them. After this, the applicant claimed that he had hidden until he was able to leave the country. The initial claims were not supported by any documentary evidence.
The applicant has not resiled from those initial claims. However, since he has had the benefit of his present representative’s advice, he has provided detailed information about his childhood and the circumstances leading up to the gang violence. It is evident that there are further claims arising from that information, which an unsophisticated applicant might not reasonably be expected to understand and raise in the context of making an urgent application. The Tribunal accepts that the applicant was honest and forthright in making his initial application, and that the further claims that have subsequently arisen were not raised at that time because of the applicant’s reasonable belief that they were not significant to his application, given that the proximate cause of his fear was gang retribution.
The applicant’s evidence about his family background was that his parents were married at the time of his birth but divorced when he was [age]. He was separated from them prior to their divorce, however, and raised primarily by his grandmother.
The applicant’s uncle was an officer in the Army of the Republic of Vietnam. He was sent to a “re-education camp”; a labour camp in which he spent 5 years. His mental health badly deteriorated. He subsequently died in a road accident, in suspicious circumstances. It appeared that he knowingly drove into a construction site and into the path of a falling power pole.
The applicant said that because of his uncle he was a victim of discrimination in his employment. Although he was a qualified [occupation] (performing the work of a qualified [occupation]) he was nevertheless unable to obtain employment for more than the wage of a normal labourer. He worked for 13 years with the same company without promotion or any substantial wage increase (his wage was indexed but not otherwise increased). He was working for less than a manufacturer labourer. When he raised it with his employer he was told that his uncle’s role as an officer in the Republic of Vietnam Armed Forces meant that the applicant was unemployable in a management role. The applicant descended into considerable detail about his employment and his discussions with his employer about the reasons for his lack of promotional opportunities.
The applicant says that he was more reliant on bribery to accomplish administrative tasks because of his uncle’s role, and provided several detailed examples of instances in which he tried to effect simple administrative acts and was asked to pay extraordinarily large bribes, including describing the manner in which he had been asked to pay extra to effect a transfer of land.
The applicant gave evidence of his opposition to the incumbent government in Vietnam, and in particular his belief that the police are corrupt and are in league with the gangsters. He said that he has real difficulty with that proposition and would have to speak out against it if he returned to Vietnam, even though he says that he knows that complaining about the police being corrupt and using the gangsters to achieve their own ends would likely result in him being killed.
The applicant said that he would be suspected by the government anyway because he was a returned asylum seeker and if he was asked directly about his support for the government he would have to tell the truth and speak against many of the practices currently going on in Vietnam. He said that he would be bullied because of his time in Australia and the assumption that he has made a lot of money in Australia. He expressed concern that he would be completely unable to find work and would be targeted by people wanting him to engage in illegal activities, which might involve threatening his family.
The report about the applicant from the clinical psychologist was prepared on the basis of an independent assessment and was not a report from a treating practitioner. It indicates a clear and reliable finding of severe PTSD arising from abuse as a child by his grandmother. His presentation included extreme fear, withdrawal, low self-esteem, loss of appetite, loss of self-worth and sense of helplessness.
On the basis of the report, the Tribunal asked the applicant about violence when he was a child. The applicant was evidently deeply uncomfortable talking about it, and the Tribunal did not press him during the hearing. Instead, the Tribunal gave him an opportunity to file a statement after the hearing, in his own language with a translation.
The statement describes his early recollections of “bombs and bullets everywhere” when he lived with his mother. He describes being taken to live with his maternal grandmother, whom he describes as “a very cruel person”. He describes regularly being beaten, starved and hit. He recounts an incident in which he broke a dish when washing and was struck over the head by his grandmother with a broom, drawing blood. He was also whipped. His grandmother would call him derogatory names whilst she was beating or whipping him. His grandmother used to go out and play cards and he would pray that she won because otherwise her frustration would be poured out on him. He says “I was like a white page but being made dirty, the obsession with my Grandmother kept haunting me.” The applicant says that he thought starting school would get him away from his grandmother but he fell afoul of a group of bullies, who used his family’s anti-Communist leanings as an excuse to beat him and break his things. He was shunned at school because of his family’s leanings.
The applicant appeared to the Tribunal when giving evidence to be quite remote and disconnected from the proceedings. He was quiet, unfocussed, and appeared to have little interest in persuading the Tribunal of anything. However, his testimony was coherent, detailed, consistent with the country information (discussed below) and consistent with the report of an expert clinical psychologist.
The applicant’s written words to the Tribunal about his childhood were consistent with his manner of speech before the Tribunal and were consistent with his claims as a whole and the report of the expert clinical psychologist.
The Tribunal finds the applicant a credible witness and accepts his evidence. In particular the Tribunal finds that:
a.The applicant was abused as a child and has severe PTSD, rendering him vulnerable to extreme suffering as a result of relatively minor bullying and aggression;
b.The applicant’s family are anti-Communist and his uncle was an officer in the former regime;
c.The applicant has been targeted for violence and discrimination at work because of his family’s anti-Communist leanings throughout his life;
d.The applicant was targeted for violence by a criminal gang because of his known association with anti-Communists;
e.The applicant reported the violence to the police who arrested but did not charge the perpetrators;
f.The gang sought revenge against the applicant after their release, and he avoided death because his neighbours called the police;
g.The police took no further action against the gang because they said they could not locate any of the members; and
h.The applicant fled Vietnam for Australia where he immediately claimed protection.
CRITERIA FOR A PROTECTION VISA
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.
Refugee criteria
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.
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).
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.
The applicant’s claims of harm through discrimination as presented to the Tribunal arise because of his political opinion, actual and imputed, and his membership of a particular social group, being relatives of officers of a former regime. However, they are largely economic claims. The Tribunal is of the view that the real risk of harm to the applicant is of violence and arises because he is a recent police informant with particular vulnerabilities arising from his history of abuse. That risk is only very loosely connected with refugee nexus reasons. For this reason, the Tribunal considers that the applicant’s claim is properly considered pursuant to the complementary protection criteria.
Complementary protection criteria
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’).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
An applicant will suffer significant harm if they will be subjected to torture: s 36(2A)(c). Torture is exhaustively defined in s 5(1) of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]. Furthermore, it must be inflicted for one of five purposes: for the purpose of obtaining from the person or a third person information or a confession; for the purpose of punishing the person for an act which they or a third person committed or is suspected of having committed; for the purpose of intimidating or coercing the person or a third person; for any purpose related to one of those purposes; or for any reason based on discrimination that is inconsistent with the Articles of the International Covenant on Civil and Political Rights (the ICCPR).
The applicant’s evidence, which the Tribunal has accepted, is that the gang members who were violent towards him sought him out for the purpose of punishment. They evidently did not intend a quick death for him, because there was time for the neighbours to call the police. The Tribunal is of the view that they intended to inflict pain and suffering (perhaps ending in death) for the purpose of punishing him for an act he had committed – reporting them to the police. Anything shy of death would comprise torture given the applicant’s diagnosed vulnerabilities. He would experience severe suffering from even relatively light bullying by a group of people.
Exceptions
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Available protection
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm.[1] The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm.[2]
[1] MIAC v MZYYL (2012) 207 FCR 211
[2] ABAR15 v MIBP (No 2) (2016) 242 FCR 11 at [60]–[61]
Country information for Vietnam indicates that corruption is prevalent throughout the police force, corruption occurs at every level of the police and bribery is widespread.[3] There are reports of organised crime groups bribing local police to not respond in specific situations.[4] Police are known to share informant details with criminal gangs.[5] Reports indicate police investigations vary, where police sometimes take effective action to investigate a crime, whilst sometimes police rely on catching the person committing the crime.[6]
[3] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.58, 20190917095808; 'Vietnam Country Security
[4] 235 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022 para.5.4, p.29
[5] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 09 September 2019, p.25
[6] 'DFAT Country Information Report: Vietnam’, Department of Foreign Affairs and Trade, 11 January 2022, para.5.3, p.29
The applicant has previously reported gang violence to the police. The effect of that report was that the people involved were taken into custody. However, they were not charged – they were released for want of evidence notwithstanding the applicant’s eye-witness testimony against them. On released they immediately sought out the applicant and indicated an intention to be revenged. The police attended the scene, preventing the applicant being harmed on that occasion, but then claimed to be unable to locate the perpetrators in spite of allegedly having previously investigated each of them. Although there might be some superficial access to police protection from the vengeful gang members, it is not such as to reduce the risk of significant harm to the applicant to something less than a real risk.[7]
Relocation
[7] MIAC v MZYYL (2012) 207 FCR 211

An academic source cited by a UK Home Office fact-finding team states that it is possible for members of criminal gangs to find out the location of a person attempting to flee that gang by persuading police to provide the relevant information.[8] That is consistent with the applicant’s fear that he would be located anywhere inside Vietnam. Relocation will not assist him.
General risk
[8] ‘Report of a Home Office fact-finding mission to Vietnam - Conducted between 23 February and 1st March 2019’, UK Home Office, 9 September 2019, p.25
The risk to the applicant is acute because of his vulnerability, because of his anti-Communist leanings and connections, and because of his determination to report to the police. It is not a risk that faces the population generally.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Jessica Henderson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Report', Overseas Security Advisory Council (OSAC), 21 February 2024, P. 5, 20240608164952

[2024] AATA 2560

27 June 2024

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