1931571 (Refugee)

1931571 (Refugee) [2022] AATA 3419 (9 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Libby Hogarth (MARN: 9364758)
CASE NUMBER:  1931571
COUNTRY OF REFERENCE:                   Kenya
MEMBER:Mark O'Loughlin
DATE:9 August 2022
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 09 August 2022 at 9:21am

CATCHWORDS
REFUGEE – Protection Visa – Kenya – sexuality – homosexual – membership of the particular social group – homosexual men – effective protection measures not available – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5H, 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 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 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 citizen of Kenya, applied for the visa on 12 March 2015. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims to fear harm in Kenya because he is homosexual.
The applicant appeared before the Tribunal by video link on 26 May 2022 to give evidence and present arguments. The Tribunal heard evidence from the applicant and from a witness, [name deleted].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Criteria for a 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). S.36(2) is attached to this decision. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c).
Refugee Criterion – s36(2)(a)
S36(2)(a) provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because the person is a refugee.
S5H(1)(a) provides that 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.
The Tribunal has had regard to documents provided by the applicant to the Department including a copy of his birth certificate and two expired passports and is satisfied that the applicant is of Kenyan nationality.
The applicant is outside of the country of his nationality. He is in Australia. Therefore, the Tribunal must consider whether the applicant is- owing to a well-founded fear of persecution- unable or unwilling to avail himself of the protection of that country.
S 5J(1) provides that 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.
It further requires that 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.
The relevant provisions 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.
The Tribunal observes that there is no country information assessment prepared by the Department of Foreign Affairs and Trade in relation to Kenya expressly for protection status determination purposes.
CONSIDERATION OF Claims and evidence
The issue in this case is whether, based on what is accepted of the claims made or arising on the evidence, the applicant is a person to whom Australia has protection obligations.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The Tribunal has taken into consideration evidence that the applicant presented to the Department and to the Tribunal including the identity information referred to above, the Protection Visa Application form (“PVA”) dated 12 March 2015, the department’s interview with the applicant of 1 October 2019 and various submissions and items of country information provided by the applicant and his representative.
The Tribunal has also relied on the decision of the delegate of 29 October 2019, a copy of which was provided by the applicant to the Tribunal.
The applicant is a man who was born in Kenya on [date] and is [age] years old.
He first came to Australia in 2006 and has stayed here ever since save for one month from [January] 2012 which he spent in Kenya.
He has held a number of different types of visas in his time here including student and bridging visas before making the subject visa application in March 2015.
He first came to Australia on a Student Visa not long after he finished high school. He says that he did not apply for protection in Australia initially because he did not appreciate that a more openly homosexual lifestyle would be available and attractive to him.
The applicant’s claims are contained in the application form as augmented by various further statements and submissions.
Fundamental to the application is the applicant’s claim to be homosexual and his claim to have a well-founded fear of persecution in Kenya because of his homosexuality.
Is the applicant homosexual?
There is clearly a real question in relation to the applicant’s sexuality because he had not told his family that he is homosexual and indeed had applied for a spouse/partner visa in 2008 on the basis of a claimed relationship with a woman.
The Tribunal observes that the applicant was still trying to hide his sexuality at this stage and accepts that he was not in a genuine spousal relationship at that time.
The applicant claimed in the PVA, in answer to question 38 (on page 6 of part B) that he communicated his sexual attraction to two fellow students in high school and was beaten by some of his classmates. He said that he could not tell anyone because he would be further victimised if others knew about his sexuality.
The Tribunal accepts that the applicant does not claim that when he was beaten at school he suffered “serious harm” as specified in s5J(4)(b) as being a prerequisite for behaviour to qualify as “persecution”.
In his evidence to the Tribunal the applicant explained that the incident at school when he was beaten was really his first attempt to explore his homosexuality. He said that the beating was a lesson in how important it was to be discreet about his sexuality in Kenya.
He said that later in school he engaged in very discreet homosexual activity but was able to avoid further incident by keeping it secret.
In the PVA he claimed he was also subjected to victimisation because of his sexuality during his visit to Kenya in early 2012. He said he met a prospective sexual partner at a nightclub but that the man beat him and informed the motel they were staying at and that the applicant was ultimately made to leave.
The Tribunal accepts the applicant’s evidence that at that time he had not expected to have difficulty avoiding trouble in Kenya, which is why he visited.
He said in answer to question 39 of the PVA that he likes women but not in a sexual way. He said that since he has been in Australia he has felt free to participate in gay activities, both sexual and social including being free to frequent gay nightclubs in a way that was not available to him in Kenya.
In evidence he said that he has experimented sexually with women but that he is not attracted to them. He has described himself as gay bisexual in the past but says that he is gay and not sexually attracted to women at all.
He said that he has not had ongoing relationships with any men in Australia but he has engaged in what he calls “dating”. He said that he meets men in nightclubs and online.
He says that he is still not open with his relatives in Kenya about his sexuality because they would not accept it.
He said in the PVA, in his interview with the Department and in his evidence before the Tribunal that he had engaged with the LGBQTI community since he first came to Australia and lived in Melbourne.
He was pleased to find places that he could go to socialise where he did not need to disguise his sexuality as he had in Kenya.
He said in his evidence that since he moved from Melbourne to Adelaide, he has frequented some gay [venues] where he has done some volunteering as well.
He said that although he tries to avoid openly communicating his sexuality with the Kenyan community in Australia, he has lots of other friends who know he is gay as do people with whom he plays sport and does business.
The Tribunal also has regard to the evidence of the witness called by the applicant who is a friend of his and has socialised with him. The Tribunal accepts her evidence that the applicant presents as gay and participates in a range of social activities with gay groups.
The Tribunal also has regard to a statutory declaration of 6 May 2022 provided by a witness who describes himself as a friend of the applicant’s and a member of the LGBQTI community, specifically a bisexual man. He says he has seen the applicant interact with other men.
The Tribunal is satisfied that the applicant is homosexual and identifies as homosexual in Australia particularly outside the Kenyan community.
The Tribunal has considered s 5L of the Act and is satisfied that the applicant is a member of a particular social group, being homosexual men.
Does the Appliant Have a Well-Founded Fear of Persecution by Reason of his Homosexuality?
S. 5J of the Act provides that the applicant may satisfy the definition of “refugee” if he has a “well-founded fear of persecution” which is defined in that section.
There are several factors to be considered in deciding this.
Does the applicant fear being persecuted by reason of being a member of a particular social group being homosexual men? 5J(1)(a)
This requirement is subjective to the applicant. The Tribunal accepts his evidence that he fears persecution by reason of being a member of a particular social group being homosexual men.
The Tribunal is satisfied that s5J(1)(a) is made out.
Is there a real chance that, if the applicant is returned to Kenya, he would be persecuted for being a member of the particular social group being homosexual men? 5(J)(1)(b)
This requirement is not subjective to the applicant. The Tribunal must be satisfied that there is a real chance of persecution for one or more of the reasons mentioned in s5J(1)(a).
The Tribunal accepts that homosexual acts between men are illegal in Kenya pursuant to s162 and 165 of Kenya’s Penal Code. Offences under these provisions carry a maximum penalty of 21 years in prison.
Country information suggests that prosecutions for homosexual acts between men under these provisions are rare in Kenya.
The Tribunal has regard to Country Policy and Information Note Kenya: Sexual orientation and gender identity and expression, version 3.0 prepared by the UK Home Office and dated April 2020.
That document notes at 2.4.5 that in 2019 the High Court of Kenya rejected a challenge to the laws against homosexual acts between men.
At 2.4.6 it notes that there have been some arrests although they do not result in long term detention, however there are reports of assaults by the police including physical abuse in custody and there have been reports of blackmail and extortion from organised gangs believed to be working with the police and by the police themselves.
The report also suggests at 2.4.13 that LGBTQI individuals have experienced verbal and physical assault, blackmail, intimidation and discrimination in employment, education, housing and accessing healthcare.
The report goes on to say at 2.4.19 that the evidence does not establish that LGBTQI individuals “are likely” to face persecution (defined as involving serious harm).
The Tribunal is not asking itself whether the applicant is likely to face persecution. The question the Tribunal must ask itself is whether the applicant faces a “real chance” of persecution.
A “real chance” does not mean a likelihood. It means a chance that is not far fetched or fanciful.
The Tribunal is satisfied that the applicant faces a real chance of persecution for reason of being a member of the particular social group of homosexual men.
In coming to this conclusion the Tribunal has had regard to s5J(5) and is satisfied that the persecution that the applicant fears involves potential threats to the applicant’s liberty, significant physical harassment of the applicant and significant physical ill-treatment of the applicant and therefore it is “serious harm” for the purposes of s5J(4)(b).
Having found that the applicant fears persecution for one of the reasons in s5J(1)(a) and that such persecution involves “serious harm”, the Tribunal must consider whether the requirements listed in s5J(4) are satisfied.
The Tribunal is satisfied that the applicant’s membership of the particular social group of homosexual men is the essential and significant reason for the persecution and paragraph (4)(a) is satisfied.
The Tribunal has found that paragraph (4)(b) is satisfied.
The Tribunal is satisfied that the persecution involves systematic and discriminatory conduct.
The Tribunal is satisfied that s5J(4) is satisfied.
Are Effective Protection Measures Available in the Receiving Country? s5J(2)
In considering this question the Tribunal has had regard to s5LA.
Given that the persecution that the applicant fears is largely at the hands of the Kenyan authorities and the police in particular, the Tribunal is satisfied that there are no effective protection measures provided by the state of Kenya.
The Tribunal is also satisfied that there is no relevant other party or organisation that could provide protection.
Could the Applicant Take Reasonable Steps to Avoid a Real Chance of Persecution in Kenya? s5J(3).
The Tribunal accepts that the applicant has concealed his sexuality both in Kenya and in Australia when associating with the Kenyan community here.
The Tribunal accepts the applicant’s testimony that if he had to return to Kenya he would try to keep his sexuality a secret because he would fear persecution. The Tribunal accepts that the applicant would try to keep his sexuality a secret in Kenya because homosexuality is illegal, because it gives rise to a risk of persecution, and because it is not accepted by the community.
The Tribunal accepts the applicant’s testimony, and the evidence of witnesses, that he actively engages with the LGBQTI community in Australia and identifies as a gay man, other than with his friends in the Kenyan community.
The Tribunal accepts the applicant’s testimony that he is not confident he would be able to maintain the secret of his sexuality if he did return to Kenya. The applicant told the Tribunal that he believes that, although he would try to keep his sexuality confidential, he would eventually be found out.
5J(3) of the Act provides that 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”.
However, pursuant to s5J(3)(c)(vi), if an applicant would be obliged to undertake a behaviour modification that would conceal the applicant’s true sexual orientation, gender identity or intersex status, such behaviour modification is not within s5J(3).
In other words, if the applicant would have to conceal his sexual orientation in order to avoid persecution, that is not a “reasonable step” and does not prevent the applicant’s fear of persecution from being a “well-held fear of persecution”.
Although the applicant does appear to have been successful in avoiding harm in the past by disguising his sexuality the Tribunal accepts his evidence that he has grown accustomed to expressing his sexuality during his time in Australia, which has now been many years.
In this time the applicant become used to being active in the LGBQTI community in Australia. He says, and the Tribunal accepts, that if he returned to Kenya he would need to alter his behaviour to conceal his sexuality as he has in the past.
The provision does not require him to act thus.
The Tribunal is satisfied that the visa application is not excluded by the operation of s5J(3).
Does the real chance of persecution relate to all areas of Kenya? S5J(1)(c)
Although there is a suggestion in the country information that there may be a lesser chance of serious harm in larger population centres in Kenya such as Nairobi and Mombasa, the information does not suggest that the chance is so low that it is not a real chance.
The Tribunal is satisfied that the real chance of persecution relates to all areas of the country.
Has the applicant taken all steps to avail himself of a right to enter and reside in any country apart from Australia? S36 (3).
Kenya is a member of the East African Community, a group of African countries which also includes Rwanda, Burundi, South Sudan, Tanzania, Uganda and The Democratic Republic of Congo.
EAC partner states allow citizens of other partner states to enter and remain for up to six months.
S36(3) provides that Australia is taken not to have protection obligations in relation to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
There is authority to the effect that an applicant’s right to move to another EAC partner state for six months is sufficient to enliven the effect of s36(3)[1].
[1] SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 at paragraph 24 and following.
However, s36(4)(a) provides that s36(3) does not apply to a country in respect of which the applicant has a well-founded fear of being persecuted for reasons of race, nationality, membership of a particular social group or political opinion.
Effectively an applicant is not obliged to exercise the right to move to a country other than Australia if in that other country, she or he would be subjected to the same or similar persecution as in her or his country of residence.
The Tribunal understands that homosexual acts between men are illegal in all of the other EAC states except Rwanda and that in Rwanda, community disapproval of homosexuality is reflected in persecution of homosexual men by the police who, even where homosexuality itself is not illegal, use laws agains “deviant behaviours” as a pretext to persecute homosexual men[2]. The country information suggests that gay and transgender people are treated worse than other detainees.
[2] Human Rights Watch. “Rwanda; Round Ups Linked to Commonwealth Meeting: 27 September 2021
The Tribunal is satisfied that, in this matter, the effect of s36(4) is to remove the applicant’s obligation to move to another EAC member state before being entitled to protection in Australia.
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 remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mark O'Loughlin
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.
…

[2022] AATA 3419

9 August 2022

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Immigration

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Jurisdiction

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