1830389 (Refugee)

[2024] AATA 2513

1830389 (Refugee) [2024] AATA 2513 (14 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1830389

COUNTRY OF REFERENCE:                   India

MEMBER:Sue Zelinka

DATE:14 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 14 June 2024 at 11:02am

CATCHWORDS
REFUGEE – protection visa – India – particular social group – homosexuals or those believed to be homosexuals – claims lack specificity – married in a heterosexual relationship – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 4 October 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 India, applied for the visa on 7 February 2018. The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations.

3. The applicant appeared before the Tribunal on 28 May 2024 to give evidence and present arguments.

   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 issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

11. The applicant is a [age]-year-old man from Jammu and Kashmir in India who arrived in Australia in March 2016 and claimed asylum in February 2018.

12. Departmental records show he arrived in Australia on a passport in a name other than his own which he claims was taken from his soon after arrival by other Indians on the same flight. The applicant’s brother in India then sent him his real passport in his own name and the Department proceeded with his processing on the basis of that identity.

13. The applicant was invited to a departmental interview on 10 July 2018 but failed to attend. The delegate proceeded to a decision that the applicant was not a person in respect of whom Australia had protection obligations. The applicant appealed that decision.

14. The Tribunal invited the applicant to a hearing on 7 May 2024 to present his claims. The applicant did not attend and the Tribunal issued an initial dismissal. On receipt of that notice, the applicant contacted the Tribunal on 17 May 2024 requesting a reinstatement. He stated that his wife had been ill during the early stages of her first pregnancy and provided medical documentation in support of this. The Tribunal granted a reinstatement and rescheduled the hearing for 28 May 2024.

15. The applicant attended the hearing at the scheduled time and place. He did not require an interpreter.

    Initial claims

16. The applicant’s claims were presented to the Department as answers to questions in the protection visa application. He claimed that his family found out he was gay when he was about [age] (that is, in 2014). They were very angry and beat him. He ran away from home in June 2015 and went to Calcutta. However, the family found out where he was and came to kill him. He reported this to the police but they just laughed at him.  An agent helped him to leave Calcutta for Australia on a false passport.

17. The applicant also submitted three photographs, each showing the same set of what appeared to be double wooden doors with some graffiti scrawled on them. The graffiti read “Kill [applicant name]” (the applicant’s first name) and “Gay”. There is no context from which a viewer can determine where these doors might be – one picture only shows a bit of wall to the right of the door on which is stuck a sheet of paper with the same graffiti. The pictures are cropped or framed so that nothing is invisible above or below the doors.

    Claims to the Tribunal

18. At the hearing, the Tribunal noted the recent information that the applicant was married and about to be a father. It also noted that his claims were that he would be persecuted in India for being gay. It asked the applicant if he wished to pursue his claims as they stood. He replied that he did.

19. The Tribunal asked him why he had left India. He said that in 2014 when he was about [age], still at school, he told his father that he was attracted to boys. His father was very angry and said he was never to say that to anyone. His father also beat him for the first time in his life. The father’s anger apparently did not abate and the following year the applicant left home, going to Calcutta, very distant from Jammu where he lived.

20. He said he knew no-one in Calcutta and stayed for the first three days at the railway station until he was rescued by a benefactor. The Tribunal said it was well-known that people prey on unaccompanied minors at places such as large railway stations, offering them shelter and then going on to exploit them. The applicant said that did not happen to him: his benefactor, whom he later called “uncle”, simply took him in to his home and helped him. The applicant in return did some housework. Sometimes he phoned his friend in Jammu who told him that his father was still angry with him and knew where he was and the applicant was not safe, even in Calcutta. The Tribunal asked why his family were not ringing him to see where he was. The applicant said he had abandoned his own mobile phone simply so that his father could not reach him. He borrowed “uncle’s” phone when he wanted to call his friend.

21. The applicant said he went to the police and reported that he was in danger but the police merely laughed at him and sent him away. The Tribunal asked why the applicant felt he was in danger: did he know that anyone had come from Jammu looking for him, as he claimed in his PVA (see paragraph 16 above)? He replied that he felt he was in danger because his friend in Jammu, with whom he had phone contact, had told him he was not safe because the father knew he was in Calcutta. The applicant asked how the father could know this, as the applicant had not told anyone in Jammu about his location except for the friend to whom he spoke on ‘uncle’s’ phone. The applicant said the friend must have let it slip.

22. The applicant never saw his father or any family members in Calcutta but nevertheless he went to the police and said he was in danger. The Tribunal put it to the applicant that he did not speak Bengali (the language of Calcutta) and asked how he could communicate with the police. The applicant said he spoke in English to them – some of the police had some English.  They dismissed him, as noted above. The applicant said he remained scared that his father would locate him and so “uncle” introduced him to an agent who said he would get the applicant out of India. The agent obtained a passport in another name and arranged travel for the applicant to Australia.

23. In Australia, the applicant had a relative who had been here for ten years: this is the person whom the applicant referred to as “brother” in his protection visa application and also several times at hearing. However, the applicant said he was not a brother, only a male relative, but they have the same surname. This man assisted the applicant after his arrival. The Tribunal asked if he told this relative he was gay and that was his reason for leaving home. The applicant said that he did, and the relative was non-judgemental. However, the applicant did not seek out the gay community in Sydney nor establish any homosexual contacts or relationships.

24. Although his relative helped the applicant in many ways, he did not know anything about visas so it was almost two years after his arrival before the applicant submitted a protection visa application.

25. The applicant asserted that when he filled in the form, he was still frightened of returning to India. He said his family believed he had brought shame upon him and ruined their lives. He would not be able to live in his community. The Tribunal put it to him that his wider family and community would not know that he was gay: his father had been adamant about keeping it a secret. The applicant said that secrets always leak out and he feels there was gossip about him. Even though his father insisted on secrecy, there were other family members like uncles and their families who also lived in the applicant’s family home.

26. The Tribunal asked the applicant what the photos (see paragraph 17 above) showed. He said that it showed the wooden doors set into the external wall of the family house, graffitied with words signifying that he, the applicant, was gay and should be killed. He said the graffiti was done in chalk. The Tribunal asked how anyone beyond the family would know, given that the family itself would not draw attention to what it apparently believed was a dreadful stigma. The applicant said that perhaps some other people knew. The Tribunal noted that he had mentioned one friend with whom he stayed in touch whilst in Calcutta, and the applicant said that perhaps that friend had let something slip. The Tribunal asked when the graffiti had appeared and how he had obtained the photographs. The applicant said the graffiti appeared in perhaps 2016 or 2017 and his friend had photographed it then sent the photos to the applicant while he was in Calcutta. The Tribunal noted that the applicant had already said he no longer had his own mobile after leaving home and he replied that the friend had sent it to “uncle’s” phone. The Tribunal noted that the applicant had left India in April 2016 so he was probably already in Australia when the photos were sent to “uncle”. The applicant said he obtained a mobile after arriving in Australia in 2018 and then uploaded the photos. The Tribunal ascertained that this occurrence of graffiti was a one-off incident.

27. The Tribunal noted the passage of time since this incident, the only claimed public ‘outing’ of the applicant. The Tribunal put it to the applicant that if he returned to India, it would be as a married man, probably a father, and he would not be perceived as gay (even if anyone had entertained this idea in 2015 or 2016).

28. The applicant said he would still be at risk from his father. The Tribunal asked if he had told his family about his marriage. He said he had not: he had not phoned anyone in India since 2018, not even his friend or his ‘uncle’.

29. The Tribunal asked the applicant about his wife. He said she is Indian from Punjab, in Australia as a graduate student. He met her and was attracted to her, realising that he was not a homosexual but bisexual. They married in 2020 and he is committed to a monogamous relationship. Her family knows about their marriage and is very accepting of him. They speak on the phone and social media.

30. The Tribunal put it to the applicant that if he returned to India, he did not have to return to Jammu if he did not wish to do so. He has lived apart from his family since 2015 and is not dependent on them in any way. He has a welcoming home with his in-laws. He has shown himself adaptable in moving to and living in two different places – Calcutta and Australia – each with languages and cultures different from his home area.

31. The applicant said that he believed he had distant relatives in Punjab and they would find out if he was there and tell his father. He would not be safe. The Tribunal put it to him that this seemed to be a very very small risk given the population of Punjab (greater than Australia’s). The applicant replied that Punjab was next to Jammu and the Tribunal notes that it shares a short stretch of border with Jammu to its north.

32. The Tribunal put it to the applicant that if his father was such a fierce patriarch that the applicant was still afraid of his reaction after an absence nine years or more, then it was most surprising that the applicant had felt comfortable enough to tell him in 2014 that he thought he was attracted to boys. The Tribunal put it to the applicant that he had already said that Jammu was a conservative place and the applicant would have known that homosexuality was a taboo subject. Yet he had felt comfortable enough in his relationship with his father to broach the topic. The applicant said his father used to be approachable but he changed at that point and hit him, which he had never done. The applicant did not believe his father would now change his mind.  

33. The Tribunal once again put it to the applicant that his father would not have to accept him as someone living as a homosexual: he was now committed to a monogamous heterosexual marriage. He has been so committed for four years and has stated that his commitment will continue. The applicant replied that he was 100% sure that he would still be in trouble, and that something would happen at some time. His father would never forgive him.

    Analysis, findings and reasons

34. On the basis of his passport and his testimony, the Tribunal finds that the applicant is a national of India.

35. The Tribunal notes that the applicant’s testimony lacked specificity and remained so even when asked to explain matters further. The Tribunal places no weight on the photographs submitted in 2018 as there is no context (see paragraph 17 above). The Tribunal is not able to accept at face value, with nothing more, the applicant’s assertion that they were the external doors of his house with chalk graffiti. The Tribunal notes the writing is black, not a colour generally found in chalk, and there are no clues as to the size of the doors, whether internal or external, or where they might be. The story that a friend took the photos and sent them to the applicant on ‘uncle’s’ phone in either 2016 or 2017 at a time when the applicant was probably already in Australia (he arrived here in April 2016) and that the applicant then retrieved them with the new phone he had purchased in Australia does not sound plausible.

36. The applicant has resiled from his initial claims that he actually faced harm in Calcutta from his family: he said at hearing that they did not pursue him there, but he thought perhaps they might. The only claim of actual harm is that his father became very angry and then beat him when the applicant said he was attracted to boys in 2014.

37. There are no claims, nor does the evidence suggest, that the applicant has lived as a homosexual or has mixed in the gay community, even during the last eight years in Australia where he would face no sanctions. The entirety of his connection to homosexuality appears to be a conversation with his father when he was a schoolboy in 2014 in which he said he was attracted to boys; and some alleged graffiti with his name and “Gay” on the outside of the family home, a year or two after he left.

38. The Tribunal is not satisfied that the applicant has suffered serious harm amounting to persecution in the past for reason of his membership of a particular social group constituted by homosexuals or those believed to be homosexuals, or for any other reason.

39. However, the refugee test is a forward-looking test and here the salient point is that the applicant is married and committed to an ongoing, monogamous, heterosexual relationship. His wife is pregnant. If he were to return to India, it would be as a married man and a father. The Tribunal is satisfied that he will not be perceived by his family or the broader community as a homosexual.

40. The Tribunal is not satisfied there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future for reason of his membership of a particular social group constituted by gay men or men who are perceived to be gay or for any other reason. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution as set out in s 5J(1) of the Act.

41. 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).

42. 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).  As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test, for the same reasons as set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. Therefore 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 India, there is a real risk that he will suffer significant harm.

1. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

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

   Sue Zelinka
   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.

   …