2008759 (Refugee)

[2022] AATA 2025

2008759 (Refugee) [2022] AATA 2025 (23 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2008759

COUNTRY OF REFERENCE:                   Vietnam

MEMBER:Alison Murphy

DATE:23 May 2022

PLACE OF DECISION:  Melbourne

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 23 May 2022 at 2:05pm

CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion – participant in protests against Formosa chemical spill – detention, threats and accusations of belonging to political party – denial of access to basic services by local authorities – capacity to subsist – unsupported claim that daughter’s disease and death linked to spill – claim for compensation discontinued after father’s death – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(5)(a), (e), 36(2)(a), 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 20 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Vietnam, applied for the visa on 22 August 2019. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection.

3. The applicant appeared before the Tribunal on 29 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister, [Ms A], and her former husband, [Mr B]. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

11. The applicant travelled to Australia on an apparently genuine Vietnamese passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Vietnam and he has been assessed on that basis by the Department. The Tribunal finds he is a Vietnamese citizen and has assessed his claims against that country as the country of nationality and the receiving country.

    The applicant’s personal background

12. The applicant is [Age 1]-year-old male from [a] village in [a] ward of the Phong Dien district of Hue, Malaysia.

13. At hearing the applicant appeared to understand and be understood by the interpreter. However at times it was apparent that he was finding it difficult answer the Tribunal’s questions, with some of his answers not relating to the question or otherwise incoherent. In particular the applicant estimated dates and time frames of events that were clearly inaccurate and was unable to clarify these matters even when prompted. The Tribunal formed the view that the applicant was attempting to answer its questions to the best of his ability and that he was truthful in his evidence, despite the relatively low level of detail he was able to provide.

14. The applicant is educated to year 10 level. In the visa application he describes himself as an [Occupation 1] but at hearing he told me he had no formal qualifications or occupation and as a result of his low level of education he took any work he could find. His mother and brother still live in [the] village after his father’s death last year.

15. The applicant was married at the time he arrived in Australia but his wife has since divorced him and remarried. He and his former wife had two children. Their daughter, [Miss C], died of [Disease] soon after the applicant’s arrival in Australia. Their son, [Master D], is aged [Age 2] and lives with his mother and her current husband in another province of Vietnam. The applicant has no contact with his former wife or son, but occasionally the applicant’s brother will pick up his son and take him back to [Ward] to visit.

16. In his protection visa application the applicant states he has no religion but at hearing he told me that although he does not formally worship he believes in God and holds religious beliefs.

17. The applicant came to Australia in August 2019 as the holder of a visitor visa. At hearing he told me his sister had sponsored him here and he hoped to stay in Australia permanently. He is working as [an Occupation 2] at a [Workplace] in Melbourne where he has been for one or two years.

18. I accept the above matters to be true.

    The applicant’s claims for protection

19. In the visa application, the applicant stated that as his family were not members of the communist party they were treated unfairly. If he returns to Vietnam, he will face mistreatment, harassment, threats and imprisonment because of his participation in the Formosa protests after that company illegally dumped poisonous waste in the waterways and he was threatened and harassed for his participation in these protests. He tried to move to the south of the country but feared his parents would be harassed and mistreated so stayed put. If he returns, he believes he will face all sorts of trouble including labour camps, torture or imprisonment. He cannot relocate because he has no support and his family will be harmed.

20. At hearing the applicant said that he faced danger in Vietnam following a huge environmental disaster in 2016, when the Formosa company contaminated the sea, killing the fish and making it very difficult to survive. The people protested and he followed the Catholic Father to protests in the centre of Quan Binh, about [Distance] km away. He had attended those protests on several occasions in 2016 and 2017 when he was detained for two days along with [other] people in a container. While detained he was threatened and intimidated and accused of belonging to a political party which he denied. After they had been there two days someone known to the Father arranged for their release. He refused to sign a paper renouncing the protesters and when his daughter developed a rare [Disease], the local authorities refused to sign the paperwork allowing her access to the health insurance scheme. They also refused to sign the paperwork allowing his son to study and the applicant to temporarily move to other places for work. The applicant claimed that if he returns to Vietnam, it will be very hard for him to get the local authorities to sign his papers to allow him to work or travel to another area and they will give him trouble with anything to do with documents.

21. His sister [Ms A] told the Tribunal that she is an Australian citizen who has been here in Australia since 1990. She said she knew of her brother’s problems in Vietnam being that he had no family and faced some oppression, so she tried to help him by sponsoring him to come to Australia. She said he had been a great help to her and she wanted him to stay. [Ms A] was clearly unwell and in pain at the hearing.

22. [Mr B] told me that his former wife ([Ms A]) was experiencing cancer and serious health problems that may not be survivable and for that reason he continued to help her even though they were no longer married. He stated that he knew her family well, including the applicant, who had been involved in the Formosa protests in Vietnam. He said the applicant was not the leader of those protests but followed the Father who was organising the protests because his daughter had [Disease] from the poison. He was arrested at the protest and after he was released, he and his family were harassed by the government. At that time his wife’s family tried to put pressure on him to follow the government, but the applicant refused to follow his wife and her family because he was a father trying to protect his daughter. After that his wife divorced him. Around the same time [Ms A] developed a very serious illness and sponsored the applicant to come to Australia and help her. Shortly after he arrived the applicant’s daughter died of her [Disease].

    Analysis of claims

23. DFAT confirms the 2016 Formosa chemical spill in Central Vietnam:

    3.66The 2016 ‘Formosa’ chemical spill was Vietnam’s worst-ever environmental disaster. Chemicals from the Formosa Plastic Corporation spilled into the sea, killed marine organisms and ended the livelihood of fisheries workers. Protests demanding more compensation led to arrests of both street protesters and online activists, notably including Catholic clergy and their followers. DFAT understands that Formosa protests are no longer occurring, at least on a large scale. This is in part because of a deal made with the company to provide compensation to victims. Other sources told DFAT that some remain dissatisfied and have launched legal appeals against compensation, which they consider inadequate.[1]

    [1] DFAT Country Information Report: Vietnam 11 January 2022

24. I accept the applicant participated in the Formosa protests led by a Catholic priest in 2016 and 2017. In making that assessment I note that the applicant resided in Hue, one of several provinces affected by the Formosa environmental disaster, which had a devastating effect on local fishermen, farmers and residents. His evidence was spontaneous and consistent with his written claims. Country information confirms the livelihoods of up to 200,000 residents were affected by the spill, resulting in large protests during 2016 and 2017 as residents sought compensation.[2] The applicant gave evidence that his father lodged an application for compensation but the family never received any and have not pursued the claim since his father’s death in 2021.

    [2] Radio Free Asia, Ha Tinh villagers protest in bid to get Formosa payouts in Vietnam, 29 March 2017, available at: >

    The applicant gave evidence that after the spill, his daughter became sick with a rare [Disease] from the contaminated water. There are some reports of human deaths as a results of the Formosa chemical spill, including a diver who died after diving in the polluted water, a woman who died after eating the contaminated fish and two Formosa employees who were responsible for handling the chemical stocks.[3] I accept that other deaths are likely to have occurred in the years since those deaths were reported in 2017. While there is no medical evidence before the Tribunal as to the cause of the applicant’s daughter’s [Disease] or her later death, I accept that the applicant’s daughter developed a terminal [Disease] and that the applicant holds a genuine belief that it was caused by the chemical spill, whether or not that is in fact the case.

    [3] The Vietnamese 8 November 2017 Timeline: The Formosa Environmental Disaster – The Vietnamese >

    DFAT reports that while the right to assembly is constitutionally protected, in practice it is subject to national security provisions of the Penal Code, which effectively outlaw protests that the government finds sensitive. Sensitive topics include human rights, environmental and land use protests and calls for democracy and freedom of expression, and protests which are allowed are subject to close police monitoring, with activists and protesters experiencing physical and electronic surveillance, arrest and difficulty obtaining legal representation. The Vietnamese authorities also use household registration requirements to control the population and restrict the movement of protesters, as staying away from home even overnight requires a person to register with local police.[4]

    [4] DFAT Country Information Report: Vietnam 11 January 2022 3.49 – 3.57; 5.18 – 5.24

25. I accept that at one of the Formosa protests attended by the applicant, he was detained for two days along with other protesters, before their release was negotiated by someone associated with the priest leading the protest. In making this assessment I note reports indicate the Formosa spill sparked unprecedented protests in Vietnam, creating a challenge for a communist government that is known for suppressing dissent and rarely faces large demonstrations. There are reports that police stopped hundreds of protesters from continuing their protests, subjecting them to intimidation and harassment, although only a relatively small number were charged and prosecuted.[5] I accept that upon his release, the applicant refused to sign a paper denouncing the protests because his daughter’s illness meant he could not bring himself to do so. I accept that as a result of his actions, the local Vietnamese authorities refused to sign the paperwork recognising the applicant’s family’s household registration and allowing the applicant’s daughter to access the social health insurance scheme, with the result that the family had to sell their home to pay for her hospital treatment.

    [5] Vietnam police stop fishermen marching to make claims at steel firm | Reuters; Vietnamese activist who protested toxic spill freed after 5 years — Radio Free Asia (rfa.org); Radio Free Asia, Vietnam arrests one anti-Formosa activist, issues warrant for another, 15 May 2017, available at: Viet Nam: Crackdown on Formosa spill activists continues: Hoàng Đức Bình and Bạch Hồng Quyền (amnesty.org); “Locked Inside Our Home”: Movement Restrictions on Rights Activists in Vietnam | HRW

26. In making that assessment I note that DFAT reports that while the vast majority of the population is enrolled in the social health insurance scheme, healthcare is not free; rather a co-payment is required, potentially along with bribes due to corruption.[6] As well, household registration requires citizens to register their permanent residence and a local registration is required to access government services such as public education and health care. Vietnamese authorities are reported to use household registration requirements to restrict the movement and activities of protesters.[7]

    [6] DFAT Country Information Report: Vietnam 11 January 2022 at 2.15

    [7] DFAT Country Information Report: Vietnam 11 January 2022 3.49 – 3.57; 5.18 – 5.24

27. I accept that the local government authorities also refused to sign the paperwork allowing the applicant’s son to study and the applicant to travel temporarily to other areas for work. I accept his wife’s family accused him of being a person who is against the government and his wife’s father received reports that his son-in-law was a destroyer, and that this was one of the factors that led to the applicant’s wife seeking a divorce.

28. Having accepted that the local authorities in the applicant’s home province in Hue refused to sign the paperwork that would allow the applicant’s family to access basic services including healthcare, education and the right to relocate temporarily in order to work, I accept that he has in the past experienced serious harm threatening his capacity to subsist for the purposes of s 5J(5)(e). He has also experienced serious harm in the form of arbitrary detention for the purposes of s 5J(5)(a). The essential and significant reason for the serious harm is his actual and imputed political opinion arising out of his participation in the Formosa protests and his refusal to denounce the protesters.

    Future risk of harm to the applicant

29. DFAT advises that the protests relating to the Formosa disaster are no longer occurring on a large scale, primarily because of the payment of compensation to some victims. This impacts on the assessment of whether the applicant’s fear of returning to Vietnam is well-founded as at the time of the Tribunal’s decision. In assessing the applicant’s claims to fear harm in Vietnam, the Tribunal needs to consider the risk of harm to the applicant in the reasonably foreseeable future and this assessment is a forward-looking test.

30. The applicant was not an organiser or instigator of the 2016 and 2017 protests. While I accept his views are genuinely held, in the absence of ongoing large-scale protests I consider it unlikely that he will again engage in protest activities which would put him at risk of detention. However, I accept that his views and participation in past protests will continue to be known in his home area and that if he returns there is a real chance he will again by denied access to basic services by the local authorities including health care, welfare and permission to register even temporarily in other areas to work or visit his son. I further accept that the discriminatory denial of these services would threaten his capacity to subsist. In making this assessment I note that access to these services requires the cooperation of local authorities who have discriminatorily denied the applicant access in the recent past and I do not discount as remote the possibility that they will again do so in the future.

1. For these reasons I accept there to be a real chance the applicant will face serious harm for the essential and significant reason of his political opinion if he returns to Vietnam, now or in the reasonably foreseeable future.

2. As the Vietnamese authorities are the perpetrators of the harm feared by the applicant, I accept that effective protection measures are not available to him and that the real chance of serious harm extends throughout Vietnam. For these reasons I find the applicant meets the definition of a refugee and the criteria set out in s 36(2)(a).

   CONCLUSIONS

3. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

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

   Alison Murphy
   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.

   …