1833402 (Refugee)

[2019] AATA 6613

1833402 (Refugee) [2019] AATA 6613 (12 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1833402

COUNTRY OF REFERENCE:                   Malaysia

MEMBER:Alison Murphy

DATE:12 December 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 12 December 2019 at 11:16am

CATCHWORDS
REFUGEE – protection visa – Malaysia – Federal Circuit Court remittal – particular social group – failed asylum seeker – race – Chinese Malaysian – complementary protection – fears harm from stepfather – relocation in home country feasible – fear of harm from stepfather does not relate to all areas of Malaysia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33
SZATV v MIAC (2007) 233 CLR 18

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 Immigration and Border Protection on 5 February 2016 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Malaysia who arrived in Australia [in] October 2012 as the holder of a [temporary] visa valid until 12 January 2013. After that date the applicant remained in Australia without a visa until he applied for the protection visa on 14 August 2015. The delegate refused to grant the protection visa on the basis that he was not satisfied the applicant was a person to whom Australia owed protection.

3. On 14 February 2017 this Tribunal (differently constituted) affirmed the delegate’s decision, and that decision was set aside by the Federal Circuit Court on 16 October 2018. The matter is now before the Tribunal pursuant to an order of the Court.

4. The applicant has appeared before the Tribunal to give evidence and present arguments on two occasions, being 14 February 2017 and 25 November 2019. On each occasion the Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. At the conclusion of the hearing on 25 November 2019 I provided the applicant with a copy of the Department of Foreign Affairs and Trade (DFAT) report and adjourned the review for 14 days to allow him to make further submissions relevant to his review.

   THE RELEVANT LAW

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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 DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets any of the criteria set out in s.36(2)(a), (aa), (b) or (c). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

13. The applicant travelled to Australia on an apparently genuine Malaysian passport.  He has at all times maintained that he is a citizen of Malaysia.  The Tribunal finds he is a Malaysian citizen and has assessed the applicant’s claims against Malaysia as his country of nationality and the ‘receiving country’.

    The applicant’s personal background

14. The applicant is a [male] of Chinese ethnicity from the city of [City 1] in Penang, Malaysia. He completed his primary and secondary schooling (up to Form [grade]) in that city before starting work at [a certain age] in a nearby [location] where he worked for about a year before travelling to Australia [at a certain age]. His mother, stepfather and stepsister remain living in the family home in [City 1], Penang, Malaysia.

15. I accept the above matters to be true.

    Fear of harm from his stepfather

16. In his protection visa application, the applicant states that his parents divorced when he was [a certain age]. His mother remarried in 2001 and in 2002 his stepsister was born. The applicant’s stepfather favoured his stepsister and on one occasion when his stepsister grabbed the remote control out of the applicant’s hand his stepfather intervened and hit the applicant with a stick, causing his hand to bleed. His stepfather threatened the applicant that if it happened again, he would get him. His mother did not speak up for him. From that time on the applicant did not talk to his stepfather, believing he would be hit or slapped if he did anything wrong.

17. When the applicant started working at a nearby [location], he told his boss about his situation. His boss was kind and gave him advice. He suggested to the applicant that since he was young and had such harm in his mind, he should consider going to another country to start a new life and be independent. After a few days considering the matter, the applicant decided to leave Malaysia because he thought that if he stayed harm could come at any time. His boss paid him some extra money and the applicant left Malaysia without letting his mother and stepfather know.

18. At the first Tribunal hearing the applicant gave evidence that he feared if he returned to Australia, his stepfather would continue to be violent towards him. When asked to describe the violence his stepfather had committed in the past, he said his stepfather had picked up [an item] and thrown it at his face. Later in the hearing he said this occurred when he was [a certain age] and he still had a [scar from the incident]. He said his stepfather also slapped him when he thought the applicant had done something wrong and frequently verbally abused the applicant. He gave evidence he had reported his stepfather’s abuse to the police on two occasions, but the police had told him they wouldn’t attend to domestic violence matters.

19. At the second Tribunal hearing the applicant gave evidence that was broadly consistent with his statements in his protection visa application and at the first Tribunal hearing. He told the Tribunal that he had not had contact with his biological father for many years and did not know where he was. He stated that the incident described in his protection visa application in which his stepfather hit him with stick after his young stepsister grabbed the remote out of his hand occurred when he was [a certain age], but that his stepfather’s critical and violent behaviour towards him continued until he left the family home to come to Australia.

20. When asked to describe the most serious incidents, he stated there was one year when his stepfather threw [an item] at him and another time when his stepfather grabbed him around the neck. As well his stepfather would regularly yell and scream at him when he made small mistakes. He said once he started working [he] remained living at home but was out a lot more with the result there was less opportunity for his stepfather to hurt him. He stated that when he was [a certain age] those incidents were still occurring, but were not as severe as when he was younger.

21. When asked why he had come to Australia at [a certain age], the applicant stated that his boss [told] him that he better leave home as if one day something were to happen, no one would know. His boss told him to come to Australia and so the applicant left his country. When asked if he had sought protection from the authorities in Malaysia he stated that he sought the advice of a client of [his work] who was a police officer, but that person told him that the police wouldn’t get involved in family problems.

22. The applicant gave evidence that he came to Australia because he wanted to leave Malaysia but he didn’t intend to stay in Australia permanently. He stated that at first he didn’t give much thought to his situation, but then he realised he wanted to stay in Australia. He last had contact with his family in about 2015, when he spoke to his mother. He could hear his stepfather in the background saying he had already left and not to come back. His stepfather said that he didn’t want to see the applicant again and if he came back he would “show him something”. After this the applicant applied for a protection visa.

23. I accept the applicant’s account of his relationship with his stepfather. I accept his stepfather favoured his stepsister and was critical and at times violent towards the applicant during his childhood and the applicant’s mother was unwilling or unable to intercede on the applicant’s behalf. I accept that if the applicant returns to [City 1], Penang, his stepfather will not allow the applicant to live at the family home. While I am doubtful that the applicant’s stepfather will actively seek to harm the applicant should he return to [City 1] and live independently from his mother and stepfamily, I give the applicant the benefit of the doubt and accept there to be a real chance his stepfather will seek to harm the applicant if he returns to [City 1], now or in the foreseeable future.

    The refugee criterion

    Fear of harm from his stepfather

24. At hearing I discussed with the applicant the requirement that the real chance of persecution relates to all areas of the relevant country. I put to the applicant that he was a child living in his stepfather’s house at the time his stepfather was violent towards him. He is now an adult and it appeared he could live independently from his family in another urban centre in Penang or elsewhere in Malaysia where there was no real chance his stepfather would seek to harm him. The applicant stated it would be very hard for him to return to Malaysia because the period of time he had been in Australia meant he had no contacts, friends or family connections to help him establish himself, but he agreed that no-one would seek to harm him in other urban centres in Malaysia.

25. I have accepted the applicant’s stepfather will not allow the applicant to return to live at the family home and there is a real chance his stepfather will seek to harm the applicant if he returns to live in [City 1]. However on the evidence before me, I do not accept there to be a real chance the applicant’s stepfather will seek to harm the applicant if he returns to live independently of the family in another urban centre in Penang or elsewhere in Malaysia.

26. As I am not satisfied that the applicant’s fear of harm from his stepfather relates to all areas of Malaysia, I am not satisfied the applicant meets the requirements of s.5J(1)(c) of the Act. For these reasons I find the applicant does not have a well-founded fear of persecution from his stepfather if returned to Malaysia, now or in the foreseeable future.

    Fear of harm for reasons of his Chinese ethnicity and as a failed asylum seeker

27. At hearing I asked the applicant if there was any other reason he feared returning to Malaysia. The applicant stated that other Malaysians who had applied for protection visas and been rejected had reported to him that when they returned to Malaysia, their passports were confiscated and they were discriminated against, particularly if they were Chinese Malaysians.

28. At hearing I put to the applicant information contained in the current DFAT report about the situation for Chinese Malaysians. DFAT reports that Chinese Malaysians are one of the biggest overseas Chinese communities in the world and the second largest ethnic group in Malaysia. Chinese Malaysians are reported to comprise a high proportion of the professional and educated class, are prominent in business and commerce and tend to be wealthier than other ethnic groups in Malaysia. They participate freely in Malaysia’s political life and are able to access public education or choose to attend Chinese schools. I discussed with the applicant DFAT’s assessment that Chinese Malaysians do not experience official or societal discrimination on a day to day basis, although they may face a low level of discrimination when attempting to enter the tertiary system or the public service.[1] The applicant stated he agreed with the DFAT information.

    [1] DFAT Country Information Report Malaysia 19 April 2018 at 3.4 – 3.10

29. I advised the applicant that the DFAT report did not suggest that the Malaysian authorities had any interest in failed asylum seekers returning to Malaysia, nor was there any other information before me that would indicate that failed asylum seekers returning to Malaysia were identified or discriminated against by the Malaysian authorities. I advised him that the DFAT report indicated that failed asylum seekers were unlikely to face adverse attention from the Malaysian government.[2] The applicant stated that he had heard Chinese Malaysians returning to Malaysia were discriminated against, but he didn’t know if it was true.

    [2] DFAT Country Information Report Malaysia 19 April 2018 at 5.22

30. I give weight to DFAT’s assessment that failed asylum seekers are unlikely to face adverse attention from the Malaysian government on return to Malaysia and that Chinese Malaysians do not experience official or societal discrimination on a day to day basis. I do not accept there to be a real chance the applicant would be targeted for harm by the Malaysian government on return because of his Chinese ethnicity or because he has overstayed his visa and unsuccessfully sought asylum in Australia.  It follows that I do not accept he has a well-founded fear of persecution for the separate or combined reasons of his Chinese ethnicity, his status as a failed asylum seeker or because he has overstayed his visa in this country.

    Complementary protection

31. In considering whether the applicant meets the complementary protection criterion under s.36(2)(aa), I have considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm. 

32. For the reasons set out above, I have not accepted there to be a real chance the applicant would be targeted for harm by the Malaysian government on return because of his Chinese ethnicity or because he has overstayed his visa and unsuccessfully sought asylum in Australia. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[3]  For the same reasons I do not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for the separate or combined reasons of his Chinese ethnicity, his status as a failed asylum seeker or because he has overstayed his visa in this country. 

    [3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagott JJ at [297], Flick J at [342].

33. I have accepted there to be a real chance the applicant’s stepfather will seek to harm the applicant if he returns to his home area of [City 1], however I have not accepted there to be a real chance the applicant’s stepfather will seek to harm him if he returns to live independently of the family in another urban centre in Penang or elsewhere in Malaysia. It follows that I do not accept there to be a real risk that the applicant will face harm from his stepfather if he returns to live independently of the family outside of his home area of [City 1] in Penang.

34. In SZATV v MIAC (2007) 233 CLR 18 the High Court endorsed the proposition that a person will not be excluded from refugee status merely because he or she could have sought refuge in another part of the same country, if under all the circumstances it would not be reasonable to expect him or her to do so. The Court held that what is reasonable, in the sense of practicable, must depend on the particular circumstances of the applicant and the impact upon that person of relocating within their country.

35. At hearing before me the applicant stated it would be very hard for him to return to Malaysia and relocate to any area away from his home area because the period of time he had been in Australia meant he had no contacts, friends or family connections to help him establish himself. He said that he had been in Australia for 7 years now and he hoped the Australian government would allow him to stay.

36. I accept that the applicant does not wish to return to Malaysia and he has little support in that country from family or friends. However he is educated to fourth form of high school level and has worked for a year in Malaysia as a [Occupation 1]. It is not suggested that he suffers from any health issues or that he lacks the capacity to find employment to support himself. At hearing he agreed that no one would seek to harm him in an urban centre outside of his home area of [City 1], Penang. On the evidence before me I am satisfied it is reasonable, in the sense of practicable, for the applicant to relocate to another part of Malaysia to avoid the harm he fears from his stepfather.

1. For these reasons I do not accept there to be a real risk that the applicant would face significant harm from his stepfather if returned to Malaysia, now or in the foreseeable future. 

   CONCLUSION

2. 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).

3. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. There is no suggestion that the applicant satisfies s.36(2)(b) or (c) 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

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

   Alison Murphy
   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.

   …