1928570 (Refugee) - [2025] ARTA 1150

1928570 (REFUGEE) [2025] ARTA 1150 (19 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928570
Tribunal:General Member S. Zelinka
Date: 19 February2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 19 February 2025 at 12:27pm
CATCHWORDS
REFUGEE – Protection Visa – Nigeria – race – Igbo ethnicity – religion – Christian faith – lesbian – a membership of a particular social group – a homosexual female – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 2 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Nigeria applied for the visa on 2 June 2017. The delegate refused to grant the visa on the basis that she did not accept that the applicant was “a homosexual female” and therefore not a member of a particular social group.
The applicant appeared before the Tribunal on 28 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [named person]. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a [age]-year-old woman of Igbo ethnicity and the Christian faith who arrived in Australia in May 2017 and lodged a protection visa three weeks later.
The applicant has consistently made only one claim: that she fears persecution in Nigeria because she is a lesbian and this attracts both societal and judicial censure there. She claimed that she has been seriously harmed in the past for reason of her sexuality and that if she were to return, this serious harm would continue.
The applicant set out her claims initially as an attachment to her protection visa application. She submitted another written statement to the Tribunal at the time of the hearing. The Tribunal took her evidence at hearing and sought clarification on a number of points. The text set out below represents the totality of the applicant’s claims.
Claims
The applicant said that her family were very devout Christians. After she finished school, the family, including herself, moved to a city in Anambra State where she started working and also enrolled part-time at university. This was in 2006.
The Tribunal asked about her initial awareness of her sexual tendency. She said that was aware for a long time that she was attracted to women but knowing that homosexuality was taboo within both her religion and in the laws of the land, she kept it a secret and did not act on her tendency. Finally she formed a relationship with a woman at work (she was in a fairly large company) and this stayed a secret between them.
The applicant was living in the family home and over time the family deemed that she was of marriageable age and arranged a marriage for her. She explained that this sort of arrangement was traditional and involved discussions between parents and other elders. She herself was never consulted. The arrangement evolved but without a formal wedding day. The Tribunal asked if she left the family home and moved in with her ‘husband’ and she said this occurred about 2013. She tolerated the arrangement – firstly because she had no choice, but secondly because she was allowed to continue at her job (where she now held a position of some responsibility) and to complete her university degree, which she did that year. Also, the ‘husband’ was away quite frequently, travelling for business.
The applicant was secretly continuing her relationship with her girlfriend. Toward the end of 2015, the applicant and her girlfriend were at the applicant’s home engaged in intimate activities, the ‘husband’ being away on business. However, he returned unexpectedly and caught the two women together. He flew into a rage. The girlfriend escaped and the applicant was attacked and severely beaten. He then raped her savagely.
She said that the next morning she was dazed, hurting, frightened and confused. She left the house and went towards her work but did not enter. However, she saw her ‘husband’ enter her workplace which occupied a ground floor in [an area]. He was speaking to a number of people and she assumed that he was telling them about her. She eventually went back to her house but her ‘husband’ came in and started abusing her again, both verbally and physically. He said he had told her family. The applicant said she was terrified.
That evening, she went to the police station to make a complaint against her husband. The police were not sympathetic and when they found out that the husband had caught her with a woman, they locked her in a cell. The police on duty then raped her. The Tribunal asked how long she was detained and she said she was kept there for two nights. When she was released on the third day, she went to a friend’s place.
The period following this was very difficult. The applicant did not return to work. She was on a city bus when a person with whom she used to work noticed her and started to yell out that he did not want to be on the same bus as a disgusting lesbian, causing her get off. She did not return to her workplace and therefore lost wages and entitlements owed to her. She went to her [sports] club to resume training and she was told she was not welcome. She said she felt she had no option but to go right away.
The Tribunal put it to her that she had consistently said that the incident with the ‘husband’ and the subsequent loss of work etc. occurred in December 2015; but her passport indicates that she did not leave Nigeria until December 2016. It asked her to account for that year. The applicant said that she simply stayed with friends (‘couch surfing’) and sometimes managed to find unskilled work. Her girlfriend could not be found. The applicant simply existed for almost a year until she got some help from one of her siblings – a sister who had left Nigeria and was living in [Country 1], working for [specified employees]. Her sister managed to secure her a [position] [and] the applicant was able to leave Nigeria and go to [Country 1].
The Tribunal asked the applicant why she returned to Nigeria in late March 2017, as shown by her passport stamp, given that she was safe in [Country 1]. She said that the [job] had come to an end: it was only a short-term position. She had nowhere else to go but back to Nigeria. However, she did not return to her previous town where her family and ‘husband’ were situated. She stayed in [City 1], a city in another state where the flight had arrived from [Country 1]. Within a short time, she received a message from the [employers] saying that they had to make a business trip to Australia and asking if she would come back [to] assist [them] there. They helped her to get a visitor’s visa for Australia and in May she departed from [City 1], flying to Australia. She said she did research on the internet about the treatment of homosexuals in Australia and was heartened by what she learned. She applied for a protection visa and did not return to [Country 1] with the [employer] when they completed their assignment.
The Tribunal asked her what happened in Australia. She said that she learned about the Sydney Gay and Lesbian Mardi Gras from the internet and went to that organisation in order to make contact with the gay and lesbian community. She submitted a receipt dated March 2021 from her membership payment of the group.
The Tribunal then raised the new information that was not available until the hearing: that the applicant was accompanied by a small baby, clearly hers, and a male person, clearly helping her and the baby. He was mostly outside the hearing room with the baby while the applicant was giving evidence. The Tribunal said this gave the impression that this was a family group and that she (the applicant) was a heterosexual married mother. The Tribunal put it that this did not accord with the evidence so far.
The applicant confirmed that the baby was hers, and that she also had another young child not present; and that the man was her male friend and the father of the children. She explained her situation by saying that after arrival in Australia, she was grateful that she was safe and she was gratified to find a gay community where she felt she belonged. However, she came to realise that she still very lonely: she was completely cut off from her own family and from her old culture. She consciously searched for someone with whom she could share these feelings and discuss the situation of being estranged from her former life. Through Sydney Gay and Lesbian Mardi Gras she met a gay Nigerian man. They became good friends and when she talked about her yearning for a child, he offered to help. She nevertheless regards herself as lesbian even though during her adult life she has had sexual relations with men (albeit against her will in Nigeria).
The Tribunal spoke to the gentleman present. He confirmed that he was a Nigerian who had been in Australia for some time as a student. He confirmed that he was gay and that Nigeria was no place to be for anyone with homosexual tendencies. He spoke about the harsh sentences for homosexual activity in Nigeria. The Tribunal asked about his relationship with the applicant. He said he had met her through the Mardi Gras activities and over time they had become good friends. He confirmed that he had understood the applicant’s strong wish to create her own family and he felt comfortable in accommodating this desire. He said they had been cohabiting since before the birth of their first child, now [age] years of age. He still identified as a gay man; he and the applicant were free to express their own sexuality.
The Tribunal asked the applicant about returning to Nigeria but not to the city where her parents and ‘husband’ lived – to another city where she could start a new life. The applicant said that she was still a lesbian and would seek out lesbian partners and the gay community in general as it was only within that community that she felt comfortable. In doing this, she would leave herself open to identification as a lesbian with the same harsh consequences as she had experienced previously – societal abuse and exclusion, verbal and physical attacks, and no protection from the police (indeed, further abuse).
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
On the basis of her passport, renewed at the Nigerian High Commission in Canberra in December 2021, the Tribunal finds that the applicant is a national of Nigeria and that Nigeria is the receiving country in this case.
The Tribunal notes that the applicant was so frightened at the beginning of the hearing that she had difficulty in answering the Tribunal’s questions. The situation improved but the applicant was silent, although shaking and sometimes crying quietly, for periods when matters relating to past harm were raised, before pulling herself together and continuing. The Tribunal notes that the applicant has been entirely consistent with her claim since she first lodged her protection visa application and was able to expand on or clarify any point which the Tribunal raised. Her evidence was consistent with country information and also with the testimony given by her co-parent. The Tribunal found the applicant to be a credible witness.
The applicant’s claim rests on the ground that she is a member of a particular social group constituted by gay and lesbian Nigerians. A particular social group is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large; this element must unite them and make those who share it a cognisable group within their society. The applicant shares the element of same-sex attraction with other lesbians and gay men; and this element makes them cognisable within Nigeria as evidenced, amongst other things, by the number of laws addressing this group specifically, such as the Same Sex Marriage (Prohibition) Act 2014 (see country information at paragraphs 33-35 below).
For the purposes of s 5L of the Act, the Tribunal is satisfied that the applicant shares the characteristic (same-sex attraction) with each member of the group; that she shares and is perceived as sharing this characteristic; and that this characteristic distinguishes the group from society. Furthermore, this characteristic is so fundamental to her identity that she should not be forced to renounce it.
The Tribunal accepts that the applicant is a lesbian but that in Nigeria she kept it entirely secret, knowing that such sexuality was taboo in her family, her community, and Nigeria as a whole through its laws. She eventually formed an ongoing relationship with a woman who worked in the same large company as she did; the two of them kept it very secret.
The Tribunal accepts that the applicant was married off according to traditional customs to a man chosen by her parents and elders and that she went to live with him. She continued to work and he travelled a good deal. She used one of his absences to have her girlfriend come to her house and their intimacy was interrupted by his unexpected return. The Tribunal accepts that the ‘husband’ inflicted serious harm upon her; exposed her identity to her family and at her workplace, causing her exclusion from both. The Tribunal accepts that the applicant tried to lodge a complaint to the police about the violent treatment, including rape, she received from her husband. The Tribunal accepts that not only did the police not accept her complaint but that they detained her in the cells where she was raped by policemen over a period of two nights.
The Tribunal notes that the country information about the harmful treatment of LGBTI persons in Nigeria is strong. DFAT reports that “A number of federal and state laws criminalise same-sex sexual acts” with a maximum of 14 years’ imprisonment” [1] There is in place federally the Same Sex Marriage (Prohibition) Act (2014) which “penalises public displays of same sex attraction with up to 10 years’ imprisonment” [2] as well as effectively rendering illegal all forms of activity which support – or are perceived to support – LGBTI rights.
[1] DFAT, Country Information Report: Nigeria, 3 December 2020, para. 3.95.
[2] Ibid.
The societal reactions to homosexuality are as strong as the legal ones. “In-country sources report all socioeconomic groups in Nigeria hold negative views of homosexuality, which many consider to be alien to traditional African culture” [3].
LGBTI advocacy groups report that individuals accused of homosexuality face a risk of losing their jobs, being compelled to leave their village or neighbourhood, or being subjected to violence which has in some cases been lethal. LGBTI individuals have reported feeling unsafe accessing health care due to the fear of discrimination from nurses and doctors should their sexual orientation or gender identity become known, including being reported to police. In order to avoid societal isolation and discrimination, members of the LGBTI community report feeing compelled to take steps to hide their identity. Both gay men and lesbians face considerable societal and family pressure to enter into a heterosexual marriage. [4]
[3] DFAT, op.cit., para. 3.99
[4] DFAT, op.cit., para. 3.100
The Tribunal notes that, over all, “DFAT assesses LGBTI individuals face a high risk of legally sanctioned official discrimination and targeting under federal and state law, and a high risk of societal discrimination and violence”. [5]
[5] DFAT, op.cit., para. 3.102
On all the evidence before it, the Tribunal is satisfied that the applicant is a member of a particular social group constituted by homosexuals (including lesbians) in Nigeria. It finds that she has suffered serious harm in the past for reason of her membership of this particular social group. Looking forward, the Tribunal is satisfied that if she were returned to Nigeria, she would continue to identify as a lesbian. She has self-identified thus all her adult life although she had to keep it secret when she was in Nigeria. Despite her secrecy, her identity as a lesbian became known and there were very serious consequences for her. Having lived openly and safely as a lesbian in Australia for almost eight years, it will be more difficult for her to revert to secrecy in the future and, as past experience has shown, it may not be possible for any length of time. Her homosexuality is an innate or immutable characteristic and so fundamental to her identity that she should not be forced to renounce it.

The Tribunal finds that if the applicant were to return to Nigeria and live as herself, without making unreasonable attempts to renounce her identity, there is a real chance that serious harm would again befall her. As she should not be forced to renounce her own identity as a lesbian, the Tribunal is satisfied that there is a real chance that serious harm amounting to persecution will befall her in the reasonably foreseeable future for reason of her membership of a particular social group constituted by homosexuals (including lesbians) in Nigeria.
The Tribunal is satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act. She meets the definition of refugee in s 5H(1)(a).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing:  28 January 2025
Representative:  Mr Pascal Ochi (MARN: 1801392)
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.
…