1933108 (Refugee)

1933108 (Refugee) [2020] AATA 4210 (26 August 2020)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  1933108
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Anne Grant
DATE OF DECISION:  26 August 2020
DATE CORRIGENDUM
SIGNED:21 October 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:
In paragraph 32 the word ‘Taiwan’ should read ‘Thailand’.

Anne Grant
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1933108
COUNTRY OF REFERENCE:                   Thailand
MEMBER:Anne Grant
DATE:26 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 August 2020 at 2:11pm
CATCHWORDS
REFUGEE – protection visa – Thailand – fear of harm from moneylender as guarantor for loan to cousin – threats but no harm – not a member of particular social group for purposes of Act – owing a debt not an innate or immutable characteristic – complementary protection – not an illegal loan shark but a colleague of cousin – no threats or harm to family since applicant’s departure – not of continuing interest to lender – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5L, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
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 18 November 2019 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Thailand, applied for the visa on 25 December 2018.
The delegate refused to grant the visa on 18 November 2020 on the basis that effective protection measures were available to her in Thailand (and she was not a refugee) and there were not substantial grounds for believing that there was a real risk that the applicant would suffer significant harm if she was returned to Thailand. Accordingly, the applicant’s claims did not engage Australia’s protection obligations under either s.36(2)(a) or 36(2)(aa) of the Act.
This hearing was listed by telephone conference on 23 July 2020. The applicant confirmed that she was alone and the hearing was conducted in private. I exercised the Tribunal’s discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. I determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant, such as the applicant’s residence in rural Victoria and the inability of the Tribunal to currently conduct in person hearings. I also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. The hearing was assisted by an interpreter in the Thai and English languages.
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 (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.
Identity and receiving country
The applicant provided a copy of her Thai passport to the Department with the application for protection. I have no reason to doubt the validity of this document. The applicant in her application claims to be a citizen of Thailand. Based on the information before me, I find that the applicant is a citizen of Thailand, which is her country of nationality and also the receiving country for the purposes of the refugee and complementary protection assessments.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant is a refugee and if not, whether there is a real risk that they will suffer significant harm as a necessary and foreseeable consequence of them being returned to Thailand.
At the commencement of the hearing, I informed the applicant that, due to the fact that the delegate never discussed her claims with her and therefore did not make findings about the claims themselves or about whether there was a real chance or a real risk that she would be persecuted in Thailand, the reasons for the persecution and whether the real chance relates to all of the country, that each of the elements of the protection provisions of the Act (which I had outlined in my introduction) were in issue, in addition to the question of whether state protection is available if the applicant was found to face a real chance of serious harm or a real risk of significant harm in Thailand.
The applicant arrived in Australia [in] May 2017 on a visitor visa. She applied for protection on 25 December 2018. The applicant’s written claims were brief. She claimed that she left Thailand ‘for safety of her life’. She claimed that her family was unable to move to another part of the country due to ‘gangster society member’ who could still find her easily, and who had ‘a lot of members around’. She claimed she was warned that she would be harmed and hurt if they find her; and that her parents were harmed and hurt and so for her safety, and that of her family; she left Thailand.
The applicant in her written claims said that the authorities are unable to protect her because ‘it involves gangster society activity’.
At hearing the applicant gave evidence that the information in her application was true, but in her evidence, she provided some information which was inconsistent with her written claims.
The applicant gave evidence that a cousin of hers had borrowed money from a loan shark and she had been a guarantor. She gave evidence that her references to gangsters in her claims were actually referring to the moneylender. Her cousin was in the army and the lender was also from the army so in the beginning, there was no problem; they took the money from her cousin’s pay directly by arrangement. Her cousin had borrowed [Amount 1] baht. (Around [Amount 1] $AUD). Her cousin had used the money to open a [shop]. After a period, her cousin left the military, closed the shop, stopped paying and disappeared. The applicant gave me the name of her cousin. When her cousin stopped paying the loan, the moneylender contacted the applicant to ask about her cousin’s whereabouts. The applicant said she then contacted her cousin, who acknowledged that she had fallen behind on the loan and said she would contact the lender herself. But after another two months, the moneylender had still not heard from her cousin and again contacted the applicant. The money lender threatened the applicant that if the applicant didn’t make arrangements to pay back what her cousin owed, they would harm her.
The applicant worked in a [workplace], and they came to her work to demand that she pay. She tried to compromise with themoneylenders, but it was too much money. After that she fled to [Location], where a relative has a [shop]. The moneylender found her at the [shop] and came to demand that she pay them back. They said the interest will keep growing and they ‘raised their voices’. The applicant said that they didn’t do more than that, because her relatives were around. But they came back several times to tell her to pay. The last time she had anything to do with them, they pushed her; and she became frightened that they would actually harm her, and made arrangements to leave the country.
The applicant said she was scared to report it to police, because they were military people. The Thai army are powerful. Her family told her to go to police, but she was too frightened.
The applicant has not paid any money towards the debt. She has three children, who are all living with relatives in Thailand. The father of the eldest two children ([Ages]) is in jail and the father of the youngest child ([Age]) has a new family. The children have never been threatened or harmed by the moneylender. She does not know why her application stated that she had no children.
The applicant claims to be scared that the moneylenders will kill her if she goes to police. Not long after she left for Australia, someone from the moneylender went once to ask her mother about the applicant and the debt; but she told them she knows nothing about it. Since then, they have not bothered her mother and they have never harmed her mother (or any other relative), despite what is in her written application. The applicant said that, nonetheless, she is reluctant to return and live with her mother because she doesn’t want to cause her trouble.
The applicant said she still fears harm in Thailand. She claimed that if she had a lump sum, she could go back and make arrangements with the moneylender, so she could be with her children. She asked whether there was a visa she could have which would enable her to have work rights and still go back to Thailand. She claimed that she would be reluctant to return to Thailand without money. She has no work rights currently and lives in a share house where she does cooking in return for board.
Having considered the applicant’s evidence, I do accept that she went guarantor on a large and now defaulted loan made by a cousin to start a business. I also accept that the moneylender pursued her to make repayments on the loan after her cousin defaulted and disappeared. I am prepared to accept, for the purposes of considering this review, that they also threatened to harm her if she did not make arrangements to repay the debt.
However, I do not accept that the moneylender ever did physically harm the applicant (despite pushing her on one occasion) or that they have ever harmed any member of her immediate family, including her parents or children. I accept her evidence that the moneylenders are not gangsters and that she was referring to the military moneylenders when she described them that way in her written application. I accept that the moneylender is (or was) within the Thai military, as was the applicant’s cousin. I find that the applicant has not repaid the debt or made arrangements to do so, and the applicant is unaware what her cousin has done about the debt (if anything). I consider that if she returns to Thailand, it is therefore plausible that she may face ongoing demands for repayment and possibly legal proceedings and consequent bankruptcy from the moneylender, seeking to enforce her guarantee agreement. I also find that the applicant has not sought advice or protection from the Thai police or any other service or authority in Thailand.
Is the applicant a refugee?
The applicant fears harm in Thailand as a guarantor of a loan made to her cousin which the cousin has reneged on. She does not fear harm for reasons of her race, her religion, her nationality, or her political opinion, but because of a financial transaction. I have considered whether the harm she fears is due to her membership of any particular social group, such as ‘guarantors on defaulted loans’, or ‘debtors owing money to moneylenders’. Section 5L of the act explains the requirements for membership of a particular social group other than family:
a)there is a characteristic shared by each member of the group and the person shares or is perceived as sharing that characteristic; and
b)the characteristic is an innate or immutable characteristic or is so fundamental to identity or conscience that the person should not be forced to renounce it or the characteristic distinguishes the group from society; and
c)the characteristic is not a fear of persecution.
The applicant may generally share a characteristic with other people (including her cousin) such as ‘persons owing money to a particular money lender’ or ‘persons owing money to money lenders’ generally. However; I consider that owing a debt is not an innate or immutable characteristic, nor is it one which is fundamental to identity or conscience which a person should not be ‘forced to renounce’. I also consider that the fact of ‘owing a debt’ is not a characteristic that distinguishes the group from society in any way. I conclude that the persecution feared by the applicant is not due to her membership of a particular social group but is because of a personal financial dispute due to her having guaranteed a loan on behalf of a cousin on which her cousin has defaulted.
Applying sections 5J(1)(a) and 5J(4)(a) I find that the applicant does not fear persecution for one or more of the reasons in the Act and is therefore not a refugee as described in s.5H. I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Complementary Protection
The applicant fears that she will be beaten and killed by the moneylender if she returns to Thailand without the means to repay the debt. She is unaware if her cousin has made arrangements to do so, but considers it unlikely. She does not know where her cousin ([Ms A]) is currently living, or her circumstances.
I am satisfied that the harm she fears from the moneylender is ‘significant harm’ as defined in s.36(2A) because it involves being arbitrarily deprived of her life, and subjected to cruel or inhuman treatment or punishment in the form of severe pain or suffering being intentionally inflicted upon her.
Is there a real risk that the applicant will suffer significant harm if she is returned to Thailand?
As discussed with the applicant at hearing, general country information reports that those in debt to loan sharks are likely to face societal and family pressure to repay and service the debt. Depending on the size of the loan and the period of delay in repaying it, borrowers may face a risk of harassment or actual or threatened physical violence, ‘although deaths are reportedly uncommon’. According to DFAT, due to a strong overlap between loan sharks and police in rural areas, borrowers are unlikely to receive police assistance in the event of receiving a threat or losing their security.[1] But the fact that loan sharks are capable of actual or threatened physical violence does not necessarily establish that the applicant will face actual or threatened violence or that there is a real risk that she will be subjected to actual or threatened physical violence by the moneylender on return to Thailand. Her particular circumstances and that of the moneylender (such as it is known) and the past history of harm must still be considered in light of that country information.
[1] Department of Foreign Affairs and Trade Country information report: Thailand 10 July 2020 at 3.117.
I acknowledge that the initial sum borrowed was substantial and that the applicant has no knowledge of the balance still owing, the amount repaid to date, or any arrangements her cousin may have made with the moneylenders since she left the country. I consider that the information before me is insufficient for a reliable finding about the size of any outstanding debt, but I have proceeded on the basis that it is relatively large and presume it is close to or at least as high as the original amount borrowed. The applicant said that the money lender is in the army and made clear that they are not ‘gangsters’ nor had links to gangsters. The loan in this instance as described by the applicant appears to be a legitimate commercial loan to enable her cousin to establish a small business. I am not satisfied that the applicant and her cousin actually owe money to a ‘loan shark’ such as those described in the country information, but instead to a former colleague of the applicant’s cousin who served in the army at the same time she did. She claims the army is powerful in Thailand and I also accept that this is so. Recent history reflects that the Thai Military has played a role in multiple coups and has taken control of the processes of establishing government and also running the country, including suppressing opposition and policing political protests. Nonetheless, the general country information does not reflect the military to be routinely involved in criminal practices such as illegal loan shark activities, or violence against ordinary citizens over commercial transactions.
The applicant’s evidence suggests that the moneylender’s principal interest in her was to find her cousin and hold her accountable, and to warn the applicant that if her cousin didn’t pay, she would have to make her own payment arrangements. As noted above, the money lender has only gone to her mother once to ask about the applicant since she left the country, and that when her mother told them she knew nothing about the debt, they left and she has since been left alone. She said that (and I have accepted that) no member of her family has been harmed, threatened or harassed by the money lender. This inaction or cessation of interest in the applicant (or her family members) in my view weakens her claim that the moneylender would significantly harm her (or her family) if she is returned to Taiwan. I find that the moneylender has not demonstrated ongoing interest in her since mid 2017, nor displayed any propensity to intimidate her in her absence by harming or even threatening to harm her family. I consider that the evidence before me does not reflect that the applicant is of continuing interest to the moneylender.

In reaching that conclusion, I have carefully considered the applicant’s evidence, including about the moneylender’s conduct including their conduct in following her to [Location] in 2017, making repeated demands for payment and shoving her on one occasion. I consider that the past conduct of the moneylenders does not suggest that they are ruthless, violent thugs (or gangsters) who will kill or physically assault the applicant if they were to discover that she had returned to Thailand. Whilst I consider that it is plausible that she may face demands for payment if they become aware of her return, I do not accept that such demands would amount to causing the applicant significant harm, nor that there is a real risk that those demands would escalate to a level where the moneylender would cause the applicant significant harm as described in s.36(2A). I do not accept the applicant’s claim that there is a real risk that she will suffer significant harm from the moneylender if she is returned to Thailand, now or in the reasonably foreseeable future.
The applicant’s only claim related to the moneylenders, and no other claims arise on the evidence before me. I conclude that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Thailand, the applicant will suffer significant harm. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion on the information and evidence before me that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
Anne Grant
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2020] AATA 4210

26 August 2020

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