2008054 (Refugee)

[2022] AATA 2526

2008054 (Refugee) [2022] AATA 2526 (21 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)

CASE NUMBER:  2008054

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Paul Noonan

DATE:21 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 21 June 2022 at 12.03pm

CATCHWORDS
REFUGEE – protection visa – Thailand – poor economic conditions – general corruption – outstanding debts – threats of harm by creditor – vague and inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 May 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants, who claim to be citizens of Thailand, applied for the visas on 15 September 2019. The delegate refused to grant the visa on the basis that there is no real chance of serious harm or real risk of significant harm to the applicants for reason of their claims to fear harm. The delegate was satisfied that the applicants’ country of nationality is Thailand, and the Tribunal is also so satisfied, on the basis of the biodata with respect to their Thai passports, copies of which are retained on the Department’s systems and file, and accordingly it has assessed their claims with respect to Thailand as the country of reference or receiving country for the purposes of this appeal.

3. The applicants appeared before the Tribunal on 17 June 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

4. The applicants are represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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.

    Procedural history

11. The first named applicant was born on [date] and the second named applicant was born on [date]. They disclosed that they are married. They arrived in Australia [in] July 2019 and applied for protection on 15 September 2019.

12. In their written claims for protection, which are identical, the applicants made the following claims (in summary) with respect to fearing persecution should they be required to return to Thailand as follows:

    ·They left Thailand because of the poor economic conditions and corruption which made it difficult to survive there.

    ·They borrowed money from relatives and could not repay the money and the lender became angry with them.

13. The delegate found that the applicants would be afforded protection should they require it from the Thai authorities. As such there was no real chance of serious harm or a real risk of significant harm to them for reason of owing money. For the following reasons, the Tribunal has decided to affirm the delegate’s decision.

    Credibility

14. The Tribunal acknowledges the importance of adopting a reasonable approach when making findings of credibility.[1] However, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is ‘well‑founded’ or that it is for the reason claimed. Rather, it remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

    [1] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court)

15. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445, the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at [482]:

    … care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

16. The Tribunal also accepts that ‘if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’ (the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at paragraph 196). However, the Handbook also states (at paragraph 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.

17. When assessing claims made by applicants, the Tribunal needs to make findings of fact in relation to those claims. This usually involves an assessment of the credibility of the applicants. When doing so, it is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.

18. The Tribunal must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam (1999) 93 FCR 220).

19. However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547).

    Claim – persons who owe money

20. The Tribunal finds that the applicants’ evidence with respect to their claim to owe money to someone in Thailand is not credible. This is for the following reasons.

21. Firstly, the applicants gave vague and implausible evidence as to who they owed money to. When asked, they were unable to clearly identify who they actually owed money to. They stated that they first borrowed money from a relative to meet living costs but were unable to clearly identify who that person was and simply stated in vague terms, when pressed, that they borrowed from normal people who give out money. They then claimed that they borrowed money at a higher interest rate to pay that money back but again were unable to identify who this money was borrowed from and simply stated they do not know who this person was when pressed for details. They confusingly gave evidence that this lender had outlets all over the country, which the Tribunal noted suggested the money was from a legitimate lender, but then stated they did not know this for sure but assumed this may be the case because the lender found them easily in Bangkok. They then claimed that they borrowed a third amount of money but again could not provide any details as to who this was from and claimed they had actually repaid this amount but still owed money to the second lender.

22. The Tribunal finds it highly implausible that the applicants would be unable to identify a relative, or other lenders, from whom they claimed to have borrowed money and apparently sought protection overseas from, if they had borrowed money as claimed; and, further, that they would be confused as to whether the lender had outlets all over the country or not. At the very least, the Tribunal would expect clarity and consistency as to who the applicants actually borrowed money from. This implausible and vague evidence causes the Tribunal to doubt the credibility of the applicants’ claim to owe money to anyone in Thailand.

23. Secondly, the applicants have been highly inconsistent with respect to who they now owe money to. In their written claims, they set out that the money was borrowed from a relative and they left the country after receiving threats from this relative. However, during the hearing, they claimed to have borrowed from, and now owe money to, a third party who is not a relative. Further, they clearly borrowed this money many years prior to departing Thailand as they gave evidence that they worked in Bangkok in full-time positions for [an employer] for many years after first borrowing money, which causes the Tribunal to doubt that they left Thailand due to threats from a relative when they stated they had paid that loan back. When asked why they have been so inconsistent in their claims as to who they owe money to, they simply stated they had not wanted to enter to much detail in their written claims and wanted to wait for the hearing. The Tribunal does not accept this explanation as reasonably plausible. The Tribunal would expect the applicants to consistently set out who they owed money to and what threats they had received and when, in applying for protection, as this detail is central and critical to their claims to be owed protection. As they have not been consistent in this evidence and given an implausible explanation for this inconsistency, this causes the Tribunal to further doubt the credibility of their claim to owe money to anyone in Thailand.

24. Thirdly, the applicants gave implausible evidence with respect to the circumstances under which they obtained the second loan. They stated that they borrowed 250,000 baht. This is an amount equivalent to around A$8,000. When asked what security they had provided, the applicants stated they had not provided any. The Tribunal put to the applicants that country information reflects that it is standard practice for lenders to require security such as vehicles or land with the borrower required to surrender ownership immediately.[2] The Tribunal considers it implausible that a lender would not require some form of security for such a claimed loan and this causes the Tribunal to further doubt the applicants’ claim to owe money.

    [2] DFAT Country Information report, Thailand, 10 July 2020, p. 44.

25. Fourthly, the applicants gave highly contradictory evidence with respect to threats of harm. During the hearing, the applicants claimed that they had received threats of harm from the creditor that they would be killed. When the Tribunal expressed surprise that a threat to kill had not been clearly set out prior to the hearing they then changed this to a threat to be careful. A threat to kill is a serious matter and to not set out such a claim in the written claims, then to make the claim and then to withdraw the claim, causes the Tribunal to consider that the applicants were seeking to embellish their claims during the hearing and this causes the Tribunal to further doubt the credibility of their claim to owe money.

26. Fifthly, the applicants gave implausible evidence as to their ongoing dealings with the claimed creditor. They stated that they borrowed the money many years ago and since then were both working full-time in Bangkok and the lender knew their location in Bangkok. As such they lived safely for many years in Thailand without any harm from the lender. Since leaving Thailand they stated, when asked, that they have not repaid any money to the lender. In addition, they left their teenage children in the care of the first named applicant’s mother in Thailand and claimed during the hearing that the creditor had made repeated threatening visits to that home in Thailand. The Tribunal considers it highly implausible that the applicants would live and work for many years in Bangkok and then move to Australia and away from their children, and leave them potentially in harm’s way, and not have made significant efforts to repay the money owed if there was a credible threat of harm to them due to the claimed outstanding debt. The fact that they have now lived in Australia for many years and worked full‑time and not sought to repay the claimed owed money, while their children still live in Thailand, causes to the Tribunal to further doubt the credibility of their claim to owe money or that their relatives have received threats since they have been in Australia. The Tribunal considers it far more plausible that the applicants have moved to Australia solely for the purposes of achieving a better economic outcome for themselves and their children in Thailand.

27. Overall, the Tribunal finds the applicants’ evidence unreliable and their explanations unpersuasive.

28. For all the above reasons, the Tribunal does not find the applicants to be credible and reliable witnesses. Their evidence reflects a propensity to shift and tailor evidence to achieve their own purposes. The Tribunal does not accept that the applicants have borrowed money from anyone or owe money to anyone in Thailand. It follows that the Tribunal does not accept that they, or their family, have been threatened with harm for reason of owing money. Therefore, the Tribunal does not accept that there is a real chance or a real risk that the applicants will face serious harm in Thailand for reason of owing money to a relative or anyone else either now or in the reasonably foreseeable future.

    Claim – general corruption and the poor state of the Thai economy

29. The Tribunal asked the applicants if they could identify a refugee reason as to why they would be intentionally persecuted for reason of general corruption or the poor state of the Thai economy. The applicants merely reiterated their concerns about these factors in generalised terms as factors that are affecting the performance of the country in general and lessening economic opportunities for its citizens. They then stated that they wished to stay in Australia because the economic opportunities are better for them here. The Tribunal finds that these claims to fear harm are not for a refugee reason and their claims to fear harm are not well-founded as per s 5J(1). Accordingly, Australia does not have protection obligations towards the applicants for these claimed reasons.

    Complementary protection

30. The Tribunal has also considered whether the applicants meet the complementary protection criterion under s 36(2)(aa). The Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm.

31. For the reasons set out above, the Tribunal has not accepted there to be a real chance that the applicants face serious harm if they return to Thailand. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugees Convention definition. Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Thailand, there is a real risk that the applicants will suffer significant harm for reason of owing money.

32. The applicants also raised concerns with respect to corruption and the poor economic situation in Thailand. The applicants confirmed that they had not been politically active in Thailand. They gave vague evidence that they had protested indoors but could not give any further details about this. Given the Tribunal’s overall concerns about the credibility of the applicants’ evidence and the vagueness of their evidence in this regard, the Tribunal does not accept that they have actually engaged in any protest activities. The Tribunal discussed with the applicants that s 36(2B) states that there is taken not to be a real risk that an applicant will suffer significant harm in a country if the real risk is one faced by the population generally and is not faced by them personally. The applicants did not set out any other concerns or reasons as to why concerns about corruption and the poor economy would be a risk faced by them personally as opposed to one faced by the general population. The Tribunal finds that the applicants’ stated claims about corruption and the poor state of the economy falls within the exception at s 36(2B).

    Overall conclusions

1. For the reasons given above, the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.

   DECISION

2. The Tribunal affirms the decision not to grant the applicants protection visas.

   Paul Noonan
   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.

   …