2006412 (Refugee)

[2020] AATA 1799

2006412 (Refugee) [2020] AATA 1799 (19 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2006412

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Roslyn Smidt

DATE:19 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 May 2020 at 4:00 pm

CATCHWORDS

REFUGEE – protection visa – Fiji – political opinion – low-level supporter of opposition party – beating and threats by army – delay in applying for protection – visa overstay and unlawful residence – criminal charge and conviction – no political activity in Australia – inconsistent evidence – no claim of harm due to ethnicity – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5J, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 March 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who is a citizen of Fiji, applied for the visa on 10 March 2020.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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) of the Act. 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).

6. Under s.5J(1) of the Act, 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 of the Act, which are extracted in the attachment to this decision.

7. 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

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

   BACKGROUND

9. The applicant is a [age]-year-old single man of indigenous ethnicity from Fiji. He completed 12 years schooling after which he worked on the family farm until leaving for Australia in January 2015. He worked in construction in Australia from 2015 until 2019.

10. The applicant was raised by his grandparents. His stepmother (also described as his mother) resides in Australia.

11. The applicant arrived in Australia on a tourist visa [in] January 2015. This visa ceased on 8 April 2015. The applicant remained in Australia unlawfully.

12. [In] November 2019 the applicant was convicted of a charge of destroying or damaging property in a domestic violence incident. He was detained at [named] Detention Centre [in] February 2020 following his release from jail. He applied for protection on 10 March 2020.

    CLAIMS AND EVIDENCE

13. In written claims provided with his initial application the applicant stated that he opposed Prime Minister Frank Bainimarama, who he claims gives orders to torture and kill people who are in his way.  He claimed that he supported the opposition Social Democratic Liberal Party (SODELPA) and that he took part in campaigning with youth advocate Jope Koroisavou prior to the September 2014 elections in Fiji. He claimed that the army ran Fiji and said that they abused and tortured innocent people, particularly indigenous Fijians. He claimed that he had been a victim of abuse and that he had received daily death threats prior to leaving Fiji, so his mother brought him to Australia to be with her.

14. The delegate did not interview the applicant. He accepted that the applicant was an indigenous Fijian, but after reviewing evidence from a range of sources did not accept that he faced a real chance of suffering serious or significant harm on return to Fiji because of his ethnicity. The delegate also accepted that the applicant supported SODELPA, but again after reviewing information from a range of sources which indicated that low level supporters of the party were not at risk of harm, he did not accept that the applicant had been of adverse interest to the authorities or that he had received death threats from the Fijian military or police or anyone else prior to his departure from Fiji. Accordingly, he found that the applicant did not face a real chance of suffering serious or significant harm if he returned to Fiji because of his political views or activities.

15. At the hearing on 15 May 2020, I noted that the applicant had claimed to be a supporter of SODELPA and asked for details of his involvement. He said that he had just been a supporter and because of this he had been taken to an army camp. I asked him to tell me about any activities he had been involved in as a SODELPA supporter. He said that he had not been involved in any activities. I asked how people were aware that he was a supporter of the party if he was only a supporter had not been involved in party activities. He said that he had distributed pamphlets before the elections, so a lot of people knew he supported the party.  He confirmed that these were the only activities he had carried out in support of SODELPA.

16. I asked the applicant to tell me about the problems he faced as a result of his support for SODELPA.  He said that he had been taken by the military and tortured, but he could not recall when this occurred. I asked him for a rough idea of the period of time which elapsed between this incident and his departure for Australia. He said it was about four or five years. I observed that this suggested that he had been detained in about 2010 or 2011. He said that this was correct.

17. I asked the applicant if he had experienced any problems after being taken by the military. He said that he was stressed and could not recall. I acknowledged that he was feeling stressed, but advised him that nevertheless I believed that he would be able to recall if he had experienced serious or continuing problems during the period between his detention and his departure for Australia. He said that he had been in pain after being beaten by men from the army, but he had not faced any serious problems.

18. I asked the applicant if he had been involved in politics since arriving in Australia. He said that he had not.

19. I advised the applicant that while I was aware that leading members of the opposition had sometimes faced problems in Fiji during the period in question, information from sources including DFAT indicated that low level supporters were not generally at risk of facing significant problems and I had difficulty accepting that he would have been detained and tortured merely because he supported SODELPA in the manner he claimed. The applicant made no comment.

20. I noted that the applicant had previously claimed that he had received death threats and asked who had made these threats and when they occurred. The applicant said that the threats were made by army people during the election period in 2010. I advised him that based on my understanding of his activities and the situation in Fiji, I had difficulty accepting this claim. He said that he and several other people had seen people changing boxes. I asked if he was referring to people engaged in voting fraud. He said that this was correct. I noted that he had not mentioned this claim previously, which caused me to doubt its veracity. He maintained that his claims were true, but made no further comment.

21. I noted that the applicant had previously claimed that he was at risk of harm because he was an indigenous Fijian and asked him to tell me about any problems he had faced because of his ethnicity. He said that the military were taking over and he had been taken to a military camp and beaten. I observed that most people serving in the Fijian military were indigenous and noted that he had previously stated that he had been taken to the army camp because of his political activities. He said that this was correct and confirmed that he had never been harmed or threatened in Fiji because of his ethnicity.

22. I advised the applicant that based on advice from DFAT and others it was not my understanding the indigenous Fijians were generally at risk of facing serious or significant harm because of their ethnicity. Despite being given an opportunity to do so the applicant made no comment.

23. I asked the applicant what he feared would happen to him if he returned to Fiji. He said that he did not know.

24. I noted that the applicant had previously stated he would have nowhere to go and nobody to support him if he returned and observed that problems of this kind did not appear to give rise to a claim for protection. I noted that he appeared to have some relatives in Fiji as he had worked on a family farm before leaving Fiji, and that he had worked in construction in Australia, which suggested he should be able to find work and re-establish himself if he returned home.  He said that he had some aunts and uncles in Fiji, but they could not help him. He said that the farm where he used to work had belonged to an aunt, but she had sold it and gone to live in [Country 1] and he would face financial problems if he returned to Fiji.

25. Finally, I noted that the applicant had arrived in Australia in January 2015, but he had not applied for protection until March 2020, which appeared to suggest that he had not been fearful of serious or significant harm when he arrived in Australia. I asked him why he had not applied for protection until recently. He said that his girlfriend had told him that she would sponsor him as her spouse, but she had not done so.

26. I asked the applicant if he wished to add anything. He said that he wanted to remain in Australia, but he did not make any further submissions regarding his claim for protection.

27. The applicant’s stepmother, [Ms A] also gave evidence at the hearing. She said that the applicant had faced many problems in Fiji. She claimed that she was present when the military took him in 2010 and said that since that time he had not had the opportunity to work. I noted that he appeared to have worked on a farm. She said that he had not been paid for that work and he had nothing left in Fiji.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Political opinion

28. I do not accept that the applicant was detained and beaten by people from the Fijian Army in 2010 or at any other time because of his involvement with SODELPA.

29. In the first place, his evidence regarding his involvement with the party and the problems he faced because of this was confused and contradictory. In submissions provided with his primary application he said that he had campaigned with youth advocate Jope Koroisavou prior to the 2014 election [held in September] and indicated that he had been abused and received death threats because of this. At the hearing he initially said that he had been a supporter of the party, but had not been involved in any activities, but when asked how people knew he supported the party he said he had distributed leaflets prior an election. He said that he had been abused by the army because of this in about 2010 or 2011, but he had not been involved in any further activities or experienced any problems after that time. He also claimed for the first time that his problems where linked to the fact that he witnessed voter fraud.

30. It is not uncommon for applicants to be confused about the exact date of past events and to give somewhat different accounts of the exact nature of their activities. I also acknowledge that a Tribunal hearing can be stressful, particularly when an applicant is in detention and the hearing is conducted by video. However, I do not accept that the applicant would have been unable to recall whether he was involved in political activities and severely beaten because of this less than a year before he left Fiji or some four or five years earlier. Nor do I accept that he would have failed to mention that he was of adverse interest to the army or others in authority in Fiji because he had witnessed voter fraud prior to the hearing if this had occurred. I find the confused and somewhat contradictory nature of the applicant’s evidence a strong indication that his evidence in relation to his political activities is largely or entirely untrue.

31. Secondly, some of the applicant’s evidence is at odds with other information regarding Fiji. Elections were held in Fiji in May 2006 and in August-September 2014, but not in 2010 or 2011, which means that the applicant cannot have been distributing election leaflets at that time. In addition, SODELPA did not exist until January 2013[1] which means that the applicant cannot have been involved in any activities in support of the party prior to that time. Furthermore, while advice from DFAT and other reliable sources[2] notes some restrictions on freedom of speech and problems faced by leading political activists at the time of the 2014 elections, it does not suggest that low level supporters of opposition groups who did nothing more than distribute leaflets were at risk of being detained or receiving death threats. I find this evidence also indicates that the applicant has not provided a truthful account of his involvement in politics in Fiji.

    [1] DFAT Country Information Reports: Fiji 27 September 2017 and 14 April 2015 and Background Paper Country: Fiji 2 August 2013. See also the sources quoted at page 4 of the delegate’s decision.

32. Third and finally, I note that the applicant did not apply for protection until some five years after he arrived in Australia, which I find to be a further indication that he was not genuinely fearful of serious or significant harm when he arrived in Australia. In reaching this conclusion I have noted his evidence that his girlfriend had promised to sponsor him for a spouse visa. However, I do not accept that this explains his failure to seek protection in a timely manner if he genuinely feared that he would face serious harm if he returned to Fiji.

33. After considering all of the relevant evidence I do not accept that the applicant was a supporter of SODELPA prior to leaving Fiji or that he was aware of voting fraud during an election in Fiji or that he was detained or beaten by members of the Fijian Army because of his political views or activities or because he was aware of voter fraud. I do not accept that he was of adverse interest to anyone in Fiji because of his political views or activities prior to arriving in Australia in early 2015. I believe that these claims were concocted to support his application for protection in Australia. 

34. I do not accept that the applicant was involved in political activities of any kind prior to leaving Fiji or that he was of adverse interest to the Fijian authorities because of his political opinion or perceived political opinion. There is no suggestion that he has been involved in political activities during the five years he has lived in Australia and there is nothing in the evidence before me which suggests he would become involved in political activities of any kind if he returned to Fiji. I am therefore not satisfied that there is a real chance that he would suffer serious or significant harm if he returns to Fiji within the reasonably foreseeable future because of his political views or activities or because of political opinions which might be imputed to him.

    Ethnicity

35. I accept that the applicant is an indigenous Fijian. I also accept that he believes that the current government has abused some indigenous Fijians. However, it was established at the hearing that he been threaten or harmed in Fiji because of his ethnicity. 

36. According to DFAT indigenous Fijians face a low level of societal discrimination and tend to be less well-educated that Indo-Fijians and as a result while they are engaged in all aspects of the economy, they are under-represented in business and professional services and mostly work in primary industries. However they do not face official discrimination and make up some 95% of people serving in the Fijian Army, about two-thirds of the police force and 65% of the civil service.[3]

    [3] DFAT Country Information Reports: Fiji 27 September 2017 and references at page 5 of the delegate’s decision.

37. In the circumstances described above,  I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Fiji in the reasonably foreseeable future because he is an indigenous Fijian.

    Lack of support in Fiji

38. I accept that the applicant lacks a strong family network in Fiji and that this lack of support and the economic situation in Fiji mean that he may have some difficultly re-establishing himself if he returns to his homeland. However, I noted that he has completed 12 years of education, he worked in the rural sector prior to coming to Australia and has worked in construction for five years in Australia, which suggests that he would be able to find employment and support himself. In any event, there is nothing in the evidence before me which suggests that he would be denied employment or the right to earn a livelihood for any of the reasons set out in s.5J(1) of the Act or that any difficulties he might face would amount to significant harm.

39. After considering all of the relevant evidence I am not satisfied that the applicant faces a real chance of suffering serious or significant harm if he returns to Fiji in the reasonably foreseeable future because he lacks family support.

    DOES THE APPLICANT MEET THE REFUGEE CRITERION?

1. After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution.

   DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?

2. After considering the applicant’s claims singly and cumulatively, I am not satisfied that he faces a real risk of suffering significant harm on return to Fiji. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

   CONCLUSION

3. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

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

5. There is no suggestion 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 any of the criteria in s.36(2).

   DECISION

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

   Roslyn Smidt
   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.

   …