1934475 (Refugee)

[2023] AATA 2312

1934475 (Refugee) [2023] AATA 2312 (12 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Stanley Chan (MARN: 0430097)

CASE NUMBER:  1934475

COUNTRY OF REFERENCE:                   Burma (Myanmar)

MEMBER:Shahyar Roushan

DATE:12 April 2023

PLACE OF DECISION:  Sydney

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 12 April 2023 at 11:24am

CATCHWORDS
REFUGEE – protection visa – Burma (Myanmar) – political opinion – low-profile supporter of the former National League for Democracy (NLD) government – particular social group – failed asylum seeker – imputation of anti-regime political opinion – forced recruitment by ethnic armed organisations – decision under review remitted

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 dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is a [age]-year-old national of Myanmar, born in Taunggyi. He arrived in Australia [in] July 2018 as the holder of a Tourist Stream (Offshore) visa (Class FA) (Subclass 600), which ceased [in] October 2018.

2. On 2 August 2018, the applicant lodged an application for a Protection visa, and on 3 December 2019, a delegate of the Minister for Home Affairs refused to grant the applicant the visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. In response to questions in relation to his reasons for claiming protection in his Protection visa application form, the applicant made the following claims.

4. He was persecuted by the ‘independent army’ in Burma, Myanmar because he did not want to join the civil war. Myanmar is a country of civil strife. The central government and the independent army are constantly fighting. The independent army is in need of young men to continue the fight. He often saw recruitment posters, but he was aware that joining the army meant that he would never be discharged or allowed to go on vacation. He supports the ‘central government’ and did not want to join the independent army to fight against the government.

5. On one occasion, the independent army sent people to his home in order to force him to enlist, but he refused to sign ‘the consent form’. As a consequence, he was beaten and threatened. His parents were also beaten. Subsequently, he and his friends wrote a petition to the central government seeking assistance, but they did not receive a response. A few days later, the independent army sent people to his home again to ‘arrest’ him and force him to enlist. He was not home at that time, but some of his friends were arrested. Being afraid, he decided to leave Myanmar and travel to Australia. 

   The interview

6. The applicant was invited to attend an interview with the Department on 2 December 2019. The applicant, however, did not attend the scheduled interview.

   The delegate’s decision

7. On the basis of the country information before her at that time, the delegate was not satisfied that the applicant will face a real chance of serious harm on his return to Myanmar due to forced recruitment by ethnic armed organisations. The delegate also found that there are no substantial grounds for believing that there is a real risk the applicant will be subject to significant harm for any reason as a necessary and foreseeable consequence of him being removed from Australia to Myanmar.

   The review application

8. On 5 December 2019, the applicant applied for a review of the delegate’s decision.

9. On 28 September 2021, the applicant appointed Mr Stanley Chan, registered migration agent, as his representative in relation to the review.

10. On 8 March 2023, Mr Chan made a submission to the Tribunal providing further information in relation to the applicant’s claims. Mr Chan stated that the applicant and his family are 'dissidents in their country’ and are at risk of facing serious and significant harm. As an ethnic Shan from the Shan state, the applicant may also face discrimination and persecution, including restrictions on his freedom of movement, forced labour and violence by government security forces. Referring to the Department of Foreign Affairs and Trade’s (DFAT) most recent Country Information Report in relation to Myanmar, Mr Chan submitted that since seizing power, the military regime has ‘cracked down on opposition voices’ and ‘has shown a willingness to use violence and force against peaceful protestors and dissidents.’

11. Under the cover of his submission, Mr Chan attached a copy of a statement by the applicant dated 8 March 2023. In the statement the applicant provided the following additional information.

12. He was born in [Town 1], [Village 1], Shan State, Myanmar on [date]. His family consists of his mother, father, a younger brother and a younger sister. His parents were ‘ordinary’ farmers and had to pay tax on their land to the government, as well as various ‘protection’ taxes to the armed wing of the Shan State Progress Party (SSPP). On one occasion, money and a few livestock (cows) were taken from the family after his mother failed to pay taxes to the SSPP. There were many families in his hometown in the same situation.

13. In 1994, there was a ‘big armed conflict’ between the Burmese military and the SSPP, resulting in many civilian casualties. The ‘local ethnic government’ made it compulsory for every family to contribute ‘money’ and ‘effort’ and to nominate a ‘man’ from each family to be ‘used’ by them. His parents had no choice but to pay ‘huge taxes and land in order to escape’ as his father was the only man of the family and he was also the ‘head’ of the family. After this incident, his father decided to prepare them to escape from their home. His parents sent him and his siblings to live with relatives in Taunggyi. His parents only visited him when they could.

14. In 2015, during the national elections he felt a ‘little bit of hope’ and he voted for the National League for Democracy (NLD) as he felt there was a  ‘life-saving remedy’ and that his country needed democracy. After the NLD won the elections, he realised that the government was ‘not strong enough to ensure our safety and the law in the countryside of Myanmar’. He realised that the government had ‘no way to protect us, the common people in the countryside’ as armed groups (SSPP, RCSS) remained in control of his hometown, asking his family for ‘high annual taxes’ and there were ‘no fair laws to protect people back home’.

15. In 2018, following clashes between SSPP and RCSS over territory, the Bumese military was deployed resulting in many casualties amongst the regional militia, so they started a recruitment drive. When they were not able to recruit soldiers, they used ‘unscrupulous means to form their underworld oganizations and began to help them do shady jobs in private’. They resorted to forced recruitment and if there were more than two men in the family, one of them would be forced to serve as a soldier. His parents did not want him and his younger brother to be enlisted so they planned their escape. He fled with his family to ‘big cities for better political protection’, but ‘gangsters’ were able to locate them and ‘so many of [his] fellow countrymen were taken back’. Those who were caught were tortured. The police did not protect them and told them to go back. His father, through connections, ‘spent a lot of money and forged a lot of documents’ to help him escape to Australia. His brother had no choice but to escape to Thailand as his father had spent his savings on his travel to Australia and was unable to obtain a visa for his brother.

    The hearing

16. The applicant appeared before the Tribunal on 15 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Burmese and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

17. 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.

18. 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.

19. 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).

20. 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.

21. 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

22. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, findings and reasons

23. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

24. Since the applicant’s arrival in Australia, the situation in Myanmar has undergone yet another significant change. The optimism that sprouted following the 2010 elections and led to transforming political and economic reforms, release of political prisoners and election of Aung San Suu Kyi to parliament, blossomed into a short-lived democratic reality in November 2015 when Myanmar held its first credible national elections in more than half a century. Having won 80 per cent of the available seats, the NLD assumed power, and although Aung San Suu Kyi could not become president due to a constitutional clause drafted to exclude her, she was appointed State Counsellor and Foreign Minister.[1] In subsequent elections held in November 2020, the NLD won in a landslide, paving the way for Aung San Suu Kyi to become president. However, 

    [the] military rejected the result and seized power under the leadership of Senior General Min Aung Hlaing on 1 February 2021. Aung San Suu Kyi and other NLD members were detained, and a state of emergency declared. The coup drew widespread international condemnation and sparked nationwide protests, which were violently repressed. In response, NLD and ethnic party representatives formed a government-in-hiding known as the National Unity Government (NUG). In September 2021, the NUG announced an armed revolutionary struggle against the military regime, which has continued since, along with renewed fighting between the military and various ethnic armed organisations.[2]

    [1] DFAT, DFAT Country Information Report – Myanmar, November 2022.

    [2] Ibid.

25. In a recent report on the situation of human rights in Myanmar in the two years after the coup, the United Nations High Commissioner for Human Rights stated:

    Two years after launching a coup, the military has brought the country into a perpetual human rights crisis through the continuous use of violence, including killings, arbitrary arrests, torture, forcible disappearances and the prosecution and sentencing of anti-coup opponents…[3]

    [3] UN Office of the High Commissioner for Human Rights (OHCHR), Report of the United Nations High Commissioner for Human Rights, Situation of human rights in Myanmar since 1 February 2022, 2 March 2023, A/HRC/52/21.

26. The report referred to the ‘catastrophic’ human rights situation that continues to fester and noted that conditions have worsened during the second year since the military coup was launched. It stressed:

    People throughout the country are exposed to continuing violations of their rights and to crime, including killings, enforced disappearances, displacement, torture, arbitrary arrests and sexual violence. There are reasonable grounds to believe that the military and its affiliated militias are responsible for most of such violations, some of which may constitute crimes against humanity and war crimes.

    Forces opposing the military have also committed human rights abuses, in particular in the targeting of non-combatant officials, their family members and others whom they believe to be assisting the military in some way…[4]

    [4] Ibid.

27. In its most recent Country Information Report in relation to Myanmar, DFAT also provided a grim and alarming assessment of the prevailing conditions in the country. Regarding political opinion, DFAT stated:

    Opponents of the military regime ranging from senior political leaders to casual participants in street protests have been subject to abuses including arbitrary detention, torture, sexual violence and enforced disappearance. People of all ages, including doctors, nurses and teachers, who have participated in antiregime protests or the Civil Disobedience Movement have been arrested or killed. Anyone accused of sympathy with the political opposition is at risk of detention by the authorities, including for having pictures of Aung San Suu Kyi in their homes or on their mobile phones, using ‘foreign’ apps such as Facebook, possessing a Virtual Private Network (VPN), or owning dinted pots and pans (banging pots and pans together is a common form of anti-coup protest)… Multiple sources told DFAT the threshold for falling under official suspicion was extremely low, and authorities made little distinction between those actively opposing the military regime and those merely expressing dissatisfaction with the regime or support for the opposition.[5] (emphasis added)

    [5] DFAT, n1, above.

28. DFAT assessed,

    …anyone opposing, or perceived as opposing, the military regime is at high risk of official discrimination and violence, including arbitrary detention, illegal property seizures, enforced disappearance, torture, beatings and extrajudicial killings or application of the death penalty. Family members are also at high risk of official discrimination and violence, including very young children and elderly parents, who may be kidnapped and held as hostages to coerce relatives into giving themselves up to authorities.[6]

    [6] Ibid.

29. The Tribunal accepts that the applicant is a low-profile supporter of the former NLD government. In view of the significant political changes in Myanmar, the Tribunal finds that the applicant would not return to Myanmar voluntarily should he not succeed in being granted a Protection visa. In such hypothetical circumstances, he would be returning as a failed asylum seeker, and it would be reasonable to assume that the Myanmar authorities would be aware that he was returning in this capacity.

30. According to DFAT,

    …given the high level of scrutiny of people arriving and departing the country, and the severe consequences for anyone suspected of opposing or criticising the regime or having links to Western countries…, a failed asylum seeker returning from Australia would be at high risk of official harassment, arbitrary detention and violence, regardless of why they originally left Myanmar.[7] (emphasis added)

    [7] Ibid.

31. The Tribunal finds that. If the applicant were to return to Myanmar as a failed asylum seeker, he would likely be accused of being opposed to or having criticised the regime regardless of his profile, his actual political opinion or any details concerning the nature of his claims. The Tribunal is of the view that this imputation of anti-regime political opinion would be triggered first and foremost as a consequence of the applicant being removed to Myanmar as a failed asylum seeker. The Tribunal further finds that failed asylum seekers in Myanmar constitute a particular social group within the meaning of s 5L of the Act.

32. Having carefully considered the evidence before it, the Tribunal finds that if the applicant were to be removed to Myanmar, there is a real chance that he will be subjected to threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Myanmar authorities. The Tribunal is satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal finds that the essential and significant reasons for the persecution feared by the applicant are his political opinion and his membership of the particular social group of failed asylum seekers in Myanmar. The Tribunal is satisfied that the real chance of persecution relates to all areas of Myanmar. As the applicant fears harm by the Myanmar authorities, the Tribunal finds that effective state protection against the harm he fears is not available to him. The Tribunal therefore finds that the applicant has a well-founded fear of persecution in Myanmar.

33. The Tribunal further finds that there is no presently existing right, however expressed, for the applicant to enter and reside in any other country. It follows that s 36(3) does not apply. The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

34. As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons provided, the Tribunal does not consider it necessary to assess other protection claims arising from his evidence, including his claims in relation to the risk of forced recruitment by armed militias in his locality.

    DECISION

35. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Shahyar Roushan
    Senior 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.

    …