1815753 (Refugee)

1815753 (Refugee) [2024] AATA 1247 (13 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1815753

COUNTRY OF REFERENCE: Malaysia
MEMBER:Gary Ledson
DATE:13 February 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 February 2024 at 11:32am

CATCHWORDS
REFUGEE – protection visa – Malaysia – no Convention nexus – applicant denied love marriage by family – employment – fear of physical harm from family – mental health issues – internal relocation – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 May 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Malaysia, applied for the visa on 17 January 2018. The delegate refused to grant the visa on the basis that the applicant is not owed protection by Australia.
The applicant appeared before the Tribunal on 30 January 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
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.
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.
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
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
The issues in this review is whether there is a real chance that, if he returns to Malaysia, the applicant will be persecuted for one or more of the five reasons set out in s.5J(1)(a) for the purpose of s.36(2)(a) of the Migration Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s.36(2)(aa) of the Migration Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is on the Department file. He has at all times stated that he is a citizen of Malaysia and has been assessed on that basis by the Department. Additionally, the applicant handed up his Malaysian passport at the commencement of the hearing.
There is no evidence before the Tribunal that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country.
The Tribunal finds the applicant is a Malaysian citizen and has assessed his claims against Malaysia as the country of nationality and the receiving country.
Protection visa application
The applicant is [an age] year-old male citizen of Malaysia who was born in Kota Bharu, Kelantan, Malaysia on [date]. He declares himself as ethnically Malaysian and a follower of Islam. He declares his mother and father are Malaysian citizens and otherwise provided no further detail of family.
The applicant arrived in Australia [in] October 2017 on a valid Electronic Travel Authority (Subclass 601 visa). He lodged an application for a Protection Visa on 17 January 2018. In his application the applicant provided the following reasons why he is claiming protection by Australia:
At Question 75 of the application, which asks why the applicant is seeking protection in Australia, he states: I am seeking protection in Australia so that I do not have to return to Malaysia.
At Question 76 of the application, which asks why the applicant left Malaysia, he states: I had to leave Malaysia because of so depressed with my family because they prevent me from marrying my girlfriend. My girlfriend and I were met since high school and we had a relationship for 5 years. Last year I had told my family to marry my girlfriend, unfortunately my family did not agree and prevented me to get married and because of this situation my girlfriend was forced into arranged marriage with someone else in her family. I can’t accept the fact that my girlfriend was married to another man, I had become too depressed and emotional disturbance, because of this I had decided to run away from my family and my country.
At Question 77 of the application, which asks what you think will happen to you if you return to Malaysia, the applicant states: If I return to Malaysia, I will be scolded by my family because I run away from them. I will also experience emotional disturbances because I still could not accept the fact that my girlfriend was marry with other man.
At Question 78 of the application, which asks whether the applicant had experienced harm in Malaysia, he indicated: No.
At Question 79 of the application, which asks whether the applicant had sought help within Malaysia after the harm: he provided no response.
At Question 80 of the application, which asks whether the applicant moved, or tried to move to another part of Malaysia to seek safety, he states: No – I tried to move to another part of Malaysia because I don’t want my family or friends can easy to find me. I was too upset and mad with my family because prevented me from getting married with my girlfriend.
At Question 81 of the application, which asks the applicant whether he would be harmed or mistreated if he returned to Malaysia, he indicated: No.
At Question 82 of the application, which asks the applicant whether he thought the authorities in Malaysia can and will protect him if he goes back, he states: No - The authorities in my country could not protect me from the issues because they do not interfere in personal matter or family affairs.
At Question 83 of the application, which asks whether the applicant would be able to relocate within Malaysia where he would not be harmed, he states: No I am unable to relocate within Malaysia because my country is one of the small country and I do not want my family will easy to find me.
In the decision record, dated 21 May 2018, the delegate was not satisfied that applicant’s fear of harm, if returned to Malaysia, is for one of the Convention reasons of his race, religion, nationality, political opinion or member of a particular social group, and that the applicant was not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) of the Act.
The delegate also considered the applicant’s claims against the complementary protection criteria and found that, as a necessary and foreseeable consequence of being removed to Malaysia, there was no real risk that applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
Review application
The applicant lodged an application for review of the delegate’s decision on 30 May 2018.
On 3 December 2023 the applicant submitted a pre-hearing information form to provide additional information in relation to his claims. The applicant submitted:
I don’t want to give more information about my claim for protection visa and I don’t have other reason that im afraid to return to my country.
Evidence at the hearing
The applicant confirmed that had previously held a Malaysian passport when he travelled to [another country] as part of a [group] when he was in primary school.
To complete his visa application, the applicant was assisted by a friend who he had met in Australia. To explain the three month gap between arriving in Australia and lodging his visa application, he told the Tribunal he was initially unaware of what was required to apply for protection but his Malaysian friends, who he had met in Australia, had explained the process.
Prior to travelling to Australia, the applicant worked part-time [occupation 1] and paid for his airline ticket with savings and the sale of his motorbike. The applicant flew from Kuala Lumpur and landed in Melbourne.
The applicant said that his mother and father live in the family home in Kelantan, Malaysia and he has [specified siblings], of which he is [family position]. The applicant had been living in the family home until he left for Australia.
The applicant completed primary and secondary school and later he worked as [an occupation 1] and occasionally helped a friend who is [another occupation]. In Australia he has worked in [occupation 1] and is currently [doing similar work].
The applicant confirmed his ethnicity and his religion. The applicant is a practising Muslim attending the mosque. He as had not had any difficulties in practising his religion in Malaysia or Australia. The applicant confirmed that he has never been a member of a political party in Malaysia or been actively involved in politics. The applicant has never been detained or arrested for any reason in Malaysia.
The Tribunal asked the applicant to confirm the detail in his visa application and his reasons for not wanting to return to Malaysia. He said that the reason he left Malaysia because of the reaction of his family who were against him marrying his girlfriend. He said that he had been in a relationship with his girlfriend, also a Muslim, for five years. When he informed his family of his intentions they scolded him because they did not accept his marriage to his girlfriend and the applicant said he became very stressed. He said that whilst his family scolded him they had never hit him. The applicant was unsure why his family opposed the marriage and suggested it was because of his girlfriend’s job (she worked in a [specified business]) and for her behaviour. The applicant said that his girlfriend was okay around him.
The applicant said that his family may have opposed the marriage because of his level of education and his part-time employment and that he may not be able to support a family. The applicant reiterated that his family scolded him for his decision and thought that if he had married his girlfriend they would hit him, he said that he was sad and depressed about his situation. The Tribunal asked the applicant about the attitude of his girlfriend’s family to the idea of marriage and he responded that they were okay with him.
The applicant decided to travel to Australia because he done some research and believed that Australia was the best place for him and he believed that the people in Australia were okay. He had spoken to a friend who had holidayed in Australia in the past and who had now gained permanent residence in Australia.
The applicant said that his family would be angry with him for running away to Australia and if he returned to Malaysia they would hit him and he believed the authorities won’t help because it was a family situation. The applicant said that when he was young and being naughty his father and brother would hit him and he was afraid that they would do the same if he returned to Malaysia. To clarify his negative response to the question on the visa application that asked whether he had experienced harm in Malaysia, the applicant said that he didn’t really understand the question and he was not aware how such family matters were dealt with in Australia. The applicant confirmed that he had not sought help from anyone in Malaysia about his difficulties with his family.
The applicant confirmed that he has had no contact with any member of his family or any of his Malaysian friends since arriving in Australia. He thought that his family might know that he was in Australia. He believed that his family would file a missing person report with the police, however he said that they would not do anything. He was not aware whether any such a report had been filed. He again reiterated that he believed that his family would hit him or scold him for running away to Australia.
When asked whether he could relocate to another part of Malaysia to avoid the harm from his family the applicant said it was not possible because his family could easily find him regardless of where he moved. He said that they would be able to locate him easily with the help of the police. He believed that his family could file a missing person report or a report that he had been kidnapped with the police. He said that because of the missing person report or kidnap report the police would take some action to find him.
The applicant again confirmed his reasons for seeking protection by Australia and that there was no other reason he feared returning to Malaysia. Again, the applicant confirmed that his family would be able to locate him if he relocated to another part of Malaysia.
The applicant told the Tribunal that he had concerns about the Malaysian economy and being able to get work if he returned but his most pressing concern is his relationship with his family and the harm that he may experience from them. However, the applicant said that he would be able to get work and earn an income if he returned to Malaysia.
The applicant agreed that even after six years he is still upset that his girlfriend had married another man. The applicant told the Tribunal that he had not been in contact with his girlfriend since he came to Australia and he has not had a girlfriend in Australia.
The Tribunal put to the applicant that the reason he is seeking protection in Australia did not appear to be for one of the five Refugee Convention reasons of race, religion, nationality, membership of a particular social group or political opinion, and invited him to comment or respond. He said that he had considered killing himself but his religion would not allow him to do it. The applicant did not make any further comment.
The applicant confirmed that everything in his visa application was true and correct.
Analysis and findings
Applicant’s fear of harm from his family
The Tribunal has considered the applicant’s claims that he will be harmed by his family if he were returned to Malaysia.
The applicant has not resiled from his original claims in his visa application that he has been harmed and will be harmed by his family for wanting to marry his girlfriend and subsequently running away to Australia. At the hearing the applicant gave highly consistent evidence of the circumstances that led him to leave Malaysia.
The Tribunal accepts the applicant had been in a relationship with his girlfriend for five years and he wanted to marry her. The Tribunal further accepts that the applicant’s family were against the marriage and did not support his decision.
The applicant told the Tribunal that he believed his family were against the marriage for a number of reasons including his age, his education, his girlfriend’s behaviour and her job. and that he would not be able to support a family with his part-time job. The Tribunal accepts the likely reasons given by the applicant, as to why his family opposed his marriage to his girlfriend.
The Tribunal accepts the applicant’s evidence that his family had scolded him because he wanted to marry his girlfriend and that he became stressed. The Tribunal also accepts that whilst his family scolded him, they had not physically harmed him. The applicant described to the Tribunal that when he was young and was naughty his father and older brother would hit him. The Tribunal does not accept the applicant’s fear that they would do the same if he returned to Malaysia.
The Tribunal does not accept that the applicant’s claim that his family will be angry with him for running away and would make reports to the police that he was a missing person or someone who had been kidnapped, given that he has had no contact with them since he left Malaysia in October 2017.
The Tribunal accepts the applicant’s claim that the police may not become involved in what appears to be a family matter but, for the same reason, the Tribunal does not accept that the police would assist his family to find him if he returned to Malaysia. The Tribunal considers it speculative that, if the applicant returned to Malaysia, his family would be assisted by the police to find him, even in the event of them filing of a missing person report or the report of his kidnapping.
The Tribunal accepts that the applicant is still upset by his family’s reaction to him wanting to marry and, as a consequence, the forced marriage of his girlfriend to another man. The Tribunal notes that the applicant has had no contact with his girlfriend since leaving Malaysia.
The Tribunal put to the applicant that the reason he is seeking protection in Australia does not appear to be for one of the five Convention reasons and invited his response. The applicant told the Tribunal that he had considered killing himself but would not because his religion would not allow him to take such a step. The applicant added nothing further.

Without diminishing the applicant’s response to his family’s reaction to wanting to marry his girlfriend, considered cumulatively, the Tribunal does not accept that the level of harm experienced and, is likely to experience, on his return to Malaysia would amount to serious harm set out in s.5J(5) of the Act.
Accordingly, the Tribunal finds that the applicant does not face a well-founded fear of persecution for one or more of the Convention reasons if he returned to Malaysia. The Tribunal is therefore not satisfied that the applicant meets the requirements of s.36(2)(a).
For the same reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Malaysia, there is a real risk that applicant will suffer significant harm from his family. The Tribunal is therefore, not satisfied that the applicant meets the requirements of s.36(2)(aa).

CONCLUSIONS
For the reasons given above, the Tribunal not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).]
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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Gary Ledson
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.
…

[2024] AATA 1247

13 February 2024

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