1826288 (Refugee)

[2022] AATA 2389

1826288 (Refugee) [2022] AATA 2389 (18 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1826288

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Anne Grant

DATE:18 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 May 2022 at 11:08am

CATCHWORDS
REFUGEE – protection visa – Malaysia – student debt – economic hardship – difficulty finding suitable work – does not fear persecution – delay in applying for protection – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), 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 7 September 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 Malaysia, applied for the visa on 23 March 2018. The delegate refused to grant the visa on the basis that they were not satisfied that there was a real chance that the applicant would suffer persecution for one or more of the reasons in s.5J(1)(a) and therefore was not a refugee. Further, the delegate found that there were not substantial grounds for believing that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of her being returned to Malaysia.

3. The applicant appeared before the Tribunal on 5 May 2022 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

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The applicant has provided evidence supporting her nationality as Malaysian and that nationality is not in dispute in this review.  The Tribunal finds that Malaysia is the country of the applicant’s nationality and the receiving country in considering her protection claims.

11. The issue in this case is whether the applicant is a refugee and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned to Malaysia, there is a real risk that she will suffer significant harm. 

12. The applicant’s written claims were brief.  She claimed that she left Malaysia due to the debt burden of her education and life loans as a single mother who had no fixed income.  She claimed that she will be blacklisted and will find it hard to work in Malaysia.  The salary in Malaysia is low and she can not afford to pay her debts. The debt has to be paid ‘no matter what’ and the applicant further claims that she is not sure if she could relocate in Malaysia, expressing a desire to have an opportunity to remain in Australia.

13. Prior to the hearing, the applicant sent in a translated copy of a [debt] for a Diploma in [Occupation 1] with a balance of [amount]MR as at April 2022. The Tribunal accepts this as establishing the fact of the applicant’s student debt.

14. At hearing, the applicant was questioned about what she fears if she returns to Malaysia.  She stated that she does not fear persecution for any reason but would find it hard to find a job, and earn sufficient money to repay the student loan and support herself and her family, including enough to send her son to a Chinese school.  She asked the Tribunal to give her the ‘opportunity’ to remain in Australia, noting that she wants to study here to improve her [Occupation 1] qualifications. 

15. The applicant had her first child in [year].  She gave evidence that at that time, she was working in [Occupation 2] and in a relationship.  However, the child’s father was unemployed and so the applicant’s income supported the whole family.  It was full time work but it was still not enough.  The applicant stated that her [Occupation 1] qualification was at a low level and so she found it hard to obtain work in that field once she graduated her diploma of [Occupation 1], which was why she worked in [Occupation 2].  She separated from the child’s father a few months after her son was born and then moved to and  lived at the [workplace] where she worked, up until she came to Australia.  When she came to Australia, her son went to live with her parents.  She said she came to Australia because she had heard that there were opportunities to work in Australia.  She came to Australia on a visitor visa.  She was asked what enquiries she had made about a work or working holiday visa and she said that she had not been aware of such a visa.  She had looked up the requirements for a student visa, and she didn’t think she met those.  So, she came on an electronic travel authority visitor visa.  The applicant gave evidence that after a while she decided that there were better opportunities for her in Australia so she decided to stay.  She picked [fruit] and did some other part time work.

16. The applicant has not paid off any of her student debt in Australia despite having work rights since 2018.  She claimed that she had just earned enough to support herself and send some money to her parents for the support of her son and to pay for private school for him.  The applicant claimed that she wanted her son to have a good education so that he wouldn’t face the obstacles she had faced. She had another child in [year].  The father is a [man] who she met in Australia and who has his own protection application, but who does not hold a protection visa at the time of hearing.  They are not married.  The Tribunal asked what obstacles (re her son’s education) that she was referring to, given that she herself had a tertiary qualification.  The applicant said that although he could go to a public school, she believed her son would get a better education in a Chinese school and do better throughout his life with a private education. 

17. It was noted that the applicant was in Australia without a visa for more than two years before applying for a protection visa. The applicant gave evidence that she decided to stay after she arrived in Australia when she saw what opportunities there were.  It was noted that this did not sound truthful in light of her earlier evidence that she came to Australia because she heard there were work opportunities here.  The applicant claimed that when she left Malaysia, she missed her son and that in spite of that, she decided to stay.

18. The applicant claimed that she had no experience in [Occupation 1] and also, she is now aged over [age] years.  She claimed that there is a preference in Malaysia for younger [Occupation 1] staff.  She fears that she would still be unable to get work in her chosen field in Malaysia.  She has not worked in that field whilst in Australia.

19. The applicant expressed a concern that the Malaysian government might prevent her leaving the country again if she returned home until she made arrangements to repay her student debt.  She is not in a position to pay it off in a lump sum or negotiate a discount. 

20. The Tribunal asked the applicant if she had put forward all of her reasons for asking for a protection visa.  The applicant said that she had.  The Tribunal put to the applicant that it had concerns that she had not established that there was a real chance or a real risk that she would suffer any harm which could be said to be serious or significant harm if she returned to Malaysia, or that the harm she feared could be considered persecution for one or more of the reasons in the legislation.  She agreed that she did not fear persecution in Malaysia, but reiterated her desire to stay in Australia because she might not be able to find work sufficient to support herself and her family in Malaysia due to the overall economy and her own limited qualifications.

21. The Tribunal also drew to the applicant’s attention that the potential of lower pay and poor economy that she described in Malaysia appeared to be a situation which would affect everyone in Malaysia and not her specifically.  The applicant agreed, and reiterated her request to stay in Australia and perhaps to study here to improve her credentials. 

    Findings

22. The Tribunal accepts the applicant’s evidence that she has a student debt and that she fears economic hardship in Malaysia. For the purposes of this review, the Tribunal accepts that the applicant may find it difficult to find work in her chosen field as a [Occupation 1], due to achieving a low academic score in her Diploma and also because she has not had any experience in the field since graduating. Nonetheless, the Tribunal notes that the applicant did not suggest that she would be excluded from, discriminated against or refused employment for any reason – just that she would be likely to only find low paid work which will make it hard for her to manage and provide for her children, as well as repay the student debt. The Tribunal accepts that there is a possibility tha the applicant will experience financial hardship in Malaysia on return but is not satisfied that she has established that she would be unable to find employment, or that she would be unable to earn a living such that she and her children could not subsist due to what she considered a low paid economy and her lack of experience. The applicant has not claimed that she would be targeted or persecuted by any person, authority or government or refused employment for any of the reasons in s.5J(1)(a) of the Act.

23. The Tribunal finds that the economic hardship such as the applicant described would not be at a level which would mean she could not subsist or support herself and her children adequately. The Tribunal finds that economic hardship feared by the applicant would not involve causing her serious harm as required by s.5J(4)(b) and nor does it involve systematic and discriminatory conduct as required by s.5J(4)(c).

24. The applicant did not raise any other reasons why she feared returning to Malaysia, despite being given an opportunity to do so.  She did not claim to fear persecution on account of her Dusun ethnicity, her Christian faith or because  she was a single mother.  She did not claim to fear persecution at all and stated on a number of occasions that she did not have a problem with ‘persecution’ or anyone persecuting her, including the government.  Her concern about being allowed to depart Malaysia in future unless she repays her student debt has been considered, but it is noted that she was allowed to depart the country in 2015 despite already owing a substantial debt at that time, and this weighs against the applicant establishing that there is a real chance that her travel in and out of Malaysia will be restricted due to her student debt if she returns.  The Tribunal is not satisfied that she has established that there is a real chance that any such restriction will be imposed on the applicant, and nonetheless, even if she had established that it would, such a restriction would not be of a nature so as to involve causing the applicant serious harm, or to involve systematic or discriminatory conduct.     

25. No other claims arise on the facts of this case as narrated by the applicant. The applicant has not established that there is a real chance (or any chance) that she will be persecuted in Malaysia for any reason.  The Tribunal has considered the applicant’s claims cumulatively as well as individually.  Even considered cumulatively, the Tribunal is not satisfied that the applicant has established that there is a real chance that the applicant will be persecuted in Malaysia.

26. The Tribunal finds that the applicant does not have a well founded fear of persecution in Malaysia.  For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary Protection

27. As discussed with the applicant at hearing, she has not claimed that she will be refused employment for any specific reason or that she will be unable to find any job at all if she is returned to Malaysia.  Her evidence suggests that she believes she will be able to find some work; but is concerned that it will be low paid and that she may find it difficult to support herself and her family, meet her student loan repayments and send her son to private school.   The applicant claims that she can do better living in Australia.  As noted above, she also referred to a ’blacklist’ preventing her from departing Malaysia until she makes arrangements to repay the debt.  The Tribunal has not accepted that the applicant has established that there is a real chance of such restrictions on the applicant’s personal movements in and out of Malaysia now or in the reasonably foreseeable future.  Noting that the real risk test is the same as the real chance test, the Tribunal finds that the applicant has not established that there is a real risk that she will be unable to enter and depart Malaysia in the future due to her student debt. 

28. In relation to her claim that she will suffer economic hardship, the applicant has not claimed that she will be subjected to the death penalty, that she will be arbitrarily deprived of her life, that she will be subjected to torture, or that she will be ‘subjected to’ cruel or inhuman treatment or punishment. She has not claimed that she will be ‘subjected to’ degrading treatment or punishment. Rather she claims that if she returns to Malaysia, she may find herself in a position of financial hardship, particularly given the fact that she will be saddled with a student debt. As noted at hearing, the applicant’s evidence about her fear that she may find herself in financial hardship because of the low paid work she can perform does not suggest that such harm will be ‘inflicted’ on her, intentionally or otherwise. The definition of cruel and inhuman treatment or punishment in s.5 of the Migration Act refers to an act or omission involving the ‘intentional infliction’ of severe pain or suffering (mental or physical) on a person. The definition of degrading treatment or punishment refers to an act or omission that causes and is intended to cause extreme humiliation on a person. The Tribunal finds that the harm claimed by the applicant in the form of financial hardship, (even if it were to arise due to the general economic conditions in Malaysia) does not satisfy the definition of significant harm because it lacks any element of deliberate infliction on the part of any person or authority of the harms feared by the applicant.

29. Further, as acknowledged by the applicant, economic hardship due to poor wages and economic conditions would be harms which are faced by the population of Malaysia generally rather than the applicant personally and so even if the applicant’s claims amounted to significant harm (which the Tribunal considers they do not), there would be taken not to be a real risk that the applicant will suffer significant harm on this ground as a consequence of her being returned to Malaysia due to the operation of s.36(2B)(c) of the Act. 

30. The Tribunal finds that the applicant has not established her claim that there is a real risk that she will suffer significant harm if she is returned to Malaysia in the form of economic hardship, having to repay a student debt and or because she will have her movement into and out of the country restricted due to an outstanding student debt.  As noted above, the applicant did not claim that she would suffer any harm in Malaysia due to her Dusun ethnicity, her Christian faith, as a single mother or for any other reason. The Tribunal has considered her claims individually and cumulatively but is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of her being returned to Malaysia, there is a real risk that the applicant will suffer significant harm.   The Tribunal is consequently not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

31. 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).

    Other matters

32. The applicant had contacted the Tribunal in 2021 advising that she had given birth to a second child, [named] on [date], as referred to above, and requesting that the child be added to this application for review.  She was advised at that time that it was not possible for her child to be added to the application as she was born after the date of the delegate’s decision.  The applicant was referred to the Department in the event that she wished to lodge an application for protection on behalf of the child.   The Tribunal has not been advised of any such application or any review of same as at the date of this decision. At hearing, the Tribunal informed the applicant that it was not considering protection claims on behalf of her second child and was only dealing with protection claims made by the applicant.  Although the applicant responded that she understood this at the commencement of the hearing, she later referred to the application as being on behalf of herself and her child.  At that time, the Tribunal reiterated that the application currently under review only related to herself.  It is noted that the applicant did not suggest in her evidence nor raise any claims that her Australian-born child would be at risk of serious or significant harm in Malaysia for any reason, apart from economic hardship consequent on her own; and the Tribunal has expressly ruled out consideration of any protection claims for the child. 

    Decision

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

   Anne Grant
   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.

   …