1820393 (Refugee)

[2024] AATA 1819

1820393 (Refugee) [2024] AATA 1819 (23 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Adewale Oladejo (MARN: 0316370)

CASE NUMBER:  1820393

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Melissa Haag

DATE:23 May 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 23 May 2024 at 3:10pm

CATCHWORDS

REFUGEE – Protection Visa – Vietnam – had 3 Australian Citizen children – applicant may be perceived to be a single woman – applicant's removal may also not be in her child's best interests – referral to the Minister – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, r 1.12, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 19 May 2017. The delegate refused to grant the visa on the basis that she was not a person to whom Australia owed protection obligations.

3. The applicant appeared before the Tribunal on 3 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Mr [A], and the applicant’s friend, Ms [B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

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

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

   Mandatory considerations

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

    CLAIMS AND EVIDENCE

    Background

11. The applicant is a [age] year-old woman born in [Vietnam]. She grew up in [her home city] with her parents and one younger brother. Her parents worked in a factory and are now retired. Her brother has been living and working in [Country 1] for approximately 10 years and his wife and two children live with the applicant’s parents in Vietnam.

12. The applicant completed High School in Vietnam in March [year] when she was [age] years of age.  Following High School, the applicant’s maternal aunt invited her to visit Australia. The applicant travelled to Australia on a Subclass 676 Visitor visa on [date] July 1999 valid until [date] September 1999.  The applicant remained in Australia following the expiry of her visa.

13. The applicant gave evidence that she previously applied for a partner visa in 2011 sponsored by a previous partner which was refused and she sought Ministerial Intervention under s351 of the Migration Act seeking to remain in Australia to care for her 3 Australian Citizen children, which was not unsuccessful. The applicant told the Tribunal that all of her 3 children were fathered by her current husband.

14. The applicant told the Tribunal that she did not want to return to Vietnam because of her 3 children and so she applied for a Subclass 866 Protection visa on 19 May 2017.  The applicant said she was assisted by an agent who initially put in untrue claims about a loan to money lenders. The applicant provided a statement to the delegate stating that these claims were untrue and that she did not want to return to Vietnam because of her 3 Australian Citizen children and the impact on her and her children if they returned with her, or if they remained in Australia and they were separated.

15. The applicant said has been in a long-standing relationship with her current husband, who she married on [date] July 2019. A copy of the applicant’s Marriage Certificate has been provided to the Tribunal.  The applicant and her husband gave evidence that they have three children [together]. The applicant and her current husband, [Mr A], gave evidence that [Mr A] is the father of all 3 children. [Mr A] said that he was an Australian Citizen at the time of their birth in Australia such that all 3 children are Australian Citizens by birth.

16. The applicant’s husband said that he was previously married when his relationship with the applicant commenced but later divorced in 2018 and married the applicant in 2019. The applicant and her husband gave evidence, also supported by the applicant’s friend in her oral evidence, that they are living in a partner relationship, together with their 3 children. The applicant’s husband gave evidence that he owns and operates a [business] which supports the family financially.

17. The applicant gave evidence that she has been engaged in home duties while living with relatives in Australia and since 2010 when her first child was born she has been the full-time carer for her children up to the present time. The applicant said she is supported by her husband financially. The applicant said that she has not completed any studies or had any formal employment experience.

18. The Tribunal accepts the above matters to be true.

    Protection visa application

19. In her protection visa application, it was stated that the applicant feared harm from money lenders because of a loan she owed. Prior to a decision by the delegate, the applicant submitted a statement that the initial claims were made by an agent and were untrue. In summary, the applicant stated that she feared returning to Vietnam because she had 3 Australian Citizen children and the issues she faced if they returned with her to Vietnam or remained in Australia, as well as the impact of her return on her mental health.

20. There is no record that the applicant was interviewed by the delegate and a decision to refuse the application was made on 6 July 2018 on the basis that the applicant was not a person to whom Australia owes protection obligations.

    Review application

21. The applicant sought review of the delegate’s decision on 13 July 2018. 

22. On 2 May 2024, the applicant’s representative provided submissions and supporting documents confirming the applicant’s marriage in 2019 and evidence in support of her 3 Australian Citizen children.  This included evidence that the applicant’s child born in [year] had been diagnosed with [Medical condition 1] in 2021 and was receiving ongoing treatment in Australia.

23. The applicant attended a hearing on 3 May 2024 to give evidence and present arguments. She was assisted by her representative. The applicant’s husband and her friend gave evidence at the hearing.

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

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

    Analysis, findings and reasons

26. At hearing, the applicant gave evidence that the claims in her visa application relating to money owed and harm feared from [a] gang were untrue. The Tribunal went through the claims in the visa application at hearing and the applicant said that she had never borrowed money from the [gang] and that she did not owe a debt to this gang or any other person or organisation in Vietnam. The applicant’s husband also gave evidence that he was recently made aware that these claims were included in her visa application and stated that his wife does not owe any debts in Vietnam. He stated that if she did he would have paid them for her. The applicant also gave evidence that she and her family were never threatened or harmed by the [gang] in Vietnam. She said that her brother was never beaten by loan sharks as stated in the application and that he has been living in [Country 1] since 2014.  On the evidence provided, the Tribunal finds that the applicant never entered into a loan with the  [gang] or any other person or organisation in Vietnam, nor that she and her family were ever threatened with harm or harmed by the [gang] in Vietnam.  Therefore, the Tribunal finds that there is no real chance of serious harm or real risk of significant harm to the applicant for reason of debts owed to the [gang] or any other person or organisation on return to Vietnam now or in the foreseeable future.

27. The applicant told the Tribunal that the reason she did not want to return to Vietnam was because she has 3 Australian Citizen children in Australia. The applicant gave evidence that she has always been the primary carer of the children as her husband supports the family financially working in his own [business] since 2012 to present.  She said that two of her children are in primary school and one is in High School.  One of her children, who was born in [year], has been diagnosed with [Medical condition 1] and requires ongoing support. The applicant provided supporting documents from the child’s treating professionals confirming his diagnosis and current treatment.

28. The Tribunal accepts that the applicant has 3 Australian Citizen children and that one of her children has high education needs and is receiving ongoing treatment for [Medical condition 1] spectrum disorder.  However, the applicant and her husband gave evidence that if the applicant returned to Vietnam now or in the foreseeable future, the children would remain in Australia with her husband who is their biological father, so that they could continue their education in Australia. The applicant’s husband also gave evidence that he would try to sponsor the applicant to Australia for a partner visa. While the Tribunal acknowledges that it will be difficult for the applicant to adjust to life in Vietnam after having been in Australia for almost 25 years, and emotionally difficult for her and the children to be separated from one another, especially for her child who has [Medical condition 1], the Tribunal finds that the applicant having 3 Australian Citizen children and the impact of separation from the children does not amount to a real chance of serious harm or a real risk of significant harm to the applicant on return to Vietnam now or in the foreseeable future.

29. The applicant gave evidence that on return to Vietnam, she would live nearby to her parents in [her home] city. She stated that she may not be able to live at their house because her younger brother’s family live with her parents. The applicant stated that she was aged [age] years of age and at her age and with no employment history she would not be able to work in Vietnam. However, the applicant and her husband gave evidence that she would be supported financially by her husband while she is in Vietnam as he owns and operates a [business] in Australia.  The Tribunal considers that the applicant will have the support of her family in Vietnam and her husband in Australia providing her with financial support, and therefore finds that there is no real chance of serious harm or real risk of significant harm for reason of the applicant’s economic circumstances on return to Vietnam now or in the foreseeable future.

30. The applicant gave evidence that on return to Vietnam, her husband would remain in Australia to operate his [business] and support the children.  The applicant’s friend also gave evidence that she has known the applicant and her husband since 2012 and is a close family friend who regularly spends time with the children and attends the same school with one of her children. The applicant’s friend told the Tribunal that she will offer the applicant’s husband support where possible.  The applicant also told the Tribunal that her husband has two older daughters living in Australia and the Tribunal considers that one of his daughters may be able to provide some support. The Tribunal finds that the applicant’s husband would not accompany the applicant to Vietnam on return and therefore the applicant may be perceived to be a single woman.  The Tribunal discussed with the applicant that DFAT reports that there is some social stigma for single women in Vietnam but that DFAT reports there is no official discrimination.[1]  The applicant and her representative did not wish to comment further on the DFAT report as to the treatment of single women in Vietnam.  The Tribunal has considered that the applicant may experience some societal disapproval as a perceived single woman in Vietnam, but notes that the treatment often comes from family pressure to marry and given she is already married, and her husband will visit her and support her financially, the Tribunal finds that there no real chance of serious harm or real risk of significant harm to the applicant for reason of her being perceived to be a single woman on return to Vietnam now or in the foreseeable future.

    [1] DFAT Country Information Report on Vietnam, 11 January 2022 at 3.86.

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

32. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam, there is a real risk that she will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s5(1). Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that she will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of her life or the death penalty. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).

33. 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

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

    Referral to the Minister

35. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

36. The Tribunal accepts that the applicant has been in Australia since 1999 and is the full-time carer to her 3 children aged [age] years of age, each of who are Australian Citizens by birth. The Tribunal accepts that the applicant’s father will find it very difficult to care for the children without the applicant in Australia, as he owns and operates a [business] working long hours. The Tribunal also accepts that the applicant’s [age] year old child was diagnosed with [Medical condition 1] in 2021 and will find it particularly difficult if the applicant is removed from Australia.  The removal of the applicant from Australia may result in ongoing and irreversible harm and continuing hardship to an Australian citizen. The applicant's removal may also not be in her child's best interests.

1. Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, the Tribunal will refer the matter to the Department.

   Melissa Haag
   Member

   
   

   ATTACHMENT  -  Extract from Migration Act 1958

   5 (1) Interpretation

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)     that is not inconsistent with Article 7 of the Covenant; or

   (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)     that is not inconsistent with Article 7 of the Covenant; or

   (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)     for the purpose of intimidating or coercing the person or a third person; or

   (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   receiving country,  in relation to a non-citizen, means:

   (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

   (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

   …

   5H    Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

   (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   Note:     For the meaning of well-founded fear of persecution, see section 5J.

   …

   5J     Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)     the real chance of persecution relates to all areas of a receiving country.

   Note:     For membership of a particular social group, see sections 5K and 5L.

   (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

   Note:     For effective protection measures, see section 5LA.

   (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

   (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

   (b)     conceal an innate or immutable characteristic of the person; or

   (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

   (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

   (ii)conceal his or her true race, ethnicity, nationality or country of origin;

   (iii)alter his or her political beliefs or conceal his or her true political beliefs;

   (iv)conceal a physical, psychological or intellectual disability;

   (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

   (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

   (b)     the persecution must involve serious harm to the person; and

   (c)     the persecution must involve systematic and discriminatory conduct.

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)     a threat to the person’s life or liberty;

   (b)     significant physical harassment of the person;

   (c)     significant physical ill‑treatment of the person;

   (d)     significant economic hardship that threatens the person’s capacity to subsist;

   (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

   5K    Membership of a particular social group consisting of family

   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

   (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

   (b)     disregard any fear of persecution, or any persecution, that:

   (i)the first person has ever experienced; or

   (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

   where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

   Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

   5L    Membership of a particular social group other than family

   For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

   (a)     a characteristic is shared by each member of the group; and

   (b)     the person shares, or is perceived as sharing, the characteristic; and

   (c)     any of the following apply:

   (i)the characteristic is an innate or immutable characteristic;

   (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

   (iii)the characteristic distinguishes the group from society; and

   (d)     the characteristic is not a fear of persecution.

   5LA Effective protection measures

   (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

   (a)     protection against persecution could be provided to the person by:

   (i)the relevant State; or

   (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

   (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

   (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

   (a)     the person can access the protection; and

   (b)     the protection is durable; and

   (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

   …

   36     Protection visas – criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (a); and

   (ii)holds a protection visa of the same class as that applied for by the applicant; or

   (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

   (i)is mentioned in paragraph (aa); and

   (ii)holds a protection visa of the same class as that applied for by the applicant.

   (2A)A non‑citizen will suffer significant harm if:

   (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

   (b)     the death penalty will be carried out on the non‑citizen; or

   (c)     the non‑citizen will be subjected to torture; or

   (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)     the non‑citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

   (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

   (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

   …