2012259 (Refugee)

[2023] AATA 4792

2012259 (Refugee) [2023] AATA 4792 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2012259

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Mia Bailey

DATE:27 November 2023

PLACE OF DECISION:  Brisbane

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

Statement made on 27 November 2023 at 4:09pm

CATCHWORDS
REFUGEE – protection visa – Fiji – family’s land appropriated by military – economic hardship – decision under review affirmed

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

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
SZBQJ v MIMIA [2005] FCA 143
SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

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 (delegate) on 9 July 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 Fiji, applied for the visa on 4 October 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.  

3. The applicant appeared before the Tribunal by video on 27 November 2023 to give evidence and present arguments.  

   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 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 engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

    
    

    s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background and receiving country

    [1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510

11. The applicant is a [age]-year-old female from Suva, Fiji. She arrived in Australia on a Visitor (Subclass 600) visa on [date] December 2017 and was granted a Student (Subclass 500) visa onshore on 9 April 2018. She previously travelled to Australia on a Tourist visa on 3 occasions between 2006 and 2013.

12. The applicant provided a copy of the biodata page of her Fijian passport as part of her protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before me to the contrary. I find that the applicant is a citizen of Fiji, and that Fiji is her receiving country for the purposes of assessing her claims for protection.

    Evidence before the delegate

13. The applicant’s protection visa application states her ethnicity as Fijian and religion as Seventh Day Adventist and that she has never married or been in a de facto relationship. Her parents are currently in Australia and have lodged their own protection visa applications. She completed high school in [year] in Fiji and commenced a [Diploma] in Australia in 2018.

14. Regarding the reasons why she left Fiji, the applicant stated that she came to Australia to undertake a [Diploma]. Her parents hoped that their farm business, on the outskirts of Suva, would be prosperous and able to financially support her education in Australia. However, a few years after the purchase of the property, her parents were told that the property belonged to the military and were asked to leave. Her father tried to challenge the military but gave up after ‘many months of stressful argument and heated conversations’. The applicant stated that, although the ‘attack from the military’ was mainly aimed at her father, it also caused her and her brothers to fear for their lives and affected them emotionally and mentally.

15. After leaving the farm property, her family moved temporarily to her grandparents’ house, but it was very crowded as her uncle and his family were also living there. Her parents decided to use their limited savings to send her to Australia to further her education.

16. Regarding what would happen if she returned to Fiji, she stated that there would be no future for her. Her parents lost the farm business to the military and exhausted all their savings on legal fees; it is now very difficult for them to financially support her studies. She thinks she may be harmed if she returned to Fiji because of what the military did to her parents.  

17. The applicant was not invited to attend an interview with the delegate. Based on the information in the protection visa application the delegate found the applicant’s fear to be based on her economic circumstances and was not satisfied that there was a real chance of persecution for any of the reasons in s 5J(1)(a) of the Act for the purposes of the refugee criterion. Further, the delegate found there to be no real risk of significant harm, as defined in s 36(2A), for the purposes of the complementary protection criterion.

    Evidence before the Tribunal

    Pre-hearing evidence

18. In response to the hearing invitation, the applicant provided a letter dated 5 November 2023. A summary of relevant information in that letter is set out below.

    i.In December 2017 she travelled to Australia with her mother for a holiday after completing high school in Fiji. In 2018, while in Australia, her parents arranged for her to apply for a Student visa and that year she commenced a [Diploma] at a college in Sydney. The applicant’s family could not afford to continue to pay the tuition fees due to land issues they had experienced in Fiji.

    ii.In mid-2019 her parents came to Australia; they and the applicant applied for protection visas in ‘an effort to make ends meet’. Her parents assisted her to lodge her protection visa application based on the same grounds raised in their application which related to land issues encountered by her parents in 2017.

    iii.Since moving to regional Queensland in 2020, there have been significant changes in her personal life; she has a de facto partner who is an Australian permanent resident and they have recently had a child. She needs a valid visa to work and help her partner support their family. Returning to Fiji would pose significant financial and economic hardship for her family.

19. On 24 November 2023, the applicant provided supporting documents consisting of a residential lease agreement, car registration certificate, letter of employment confirmation from [Employer 1] and a Queensland birth certificate for her son.

    Evidence provided at hearing

20. At the applicant’s request, the hearing was conducted without the assistance of an interpreter. There was no indication throughout the hearing that the applicant was experiencing any difficulty in understanding the Tribunal or providing her evidence. 

21. The applicant provided additional details regarding her personal and family background. In Fiji she mostly lived at her grandparents’ house in Suva; except for about 3 years when her family lived on the farm property which was about [number] minutes’ drive from her grandparents’ house. The applicant’s parents are currently residing and working in regional Queensland. In Fiji her mother was employed as a [clerk] and her father was a [occupation]; he was employed by a [business] owned by her grandfather. Her 2 brothers, currently aged [age] and [age] years, live in Suva. One brother has recently [graduated] and her other brother is currently [studying] at university.

22. The applicant graduated high school in Fiji and undertook about 18 months of the [diploma] course in Australia. The applicant is currently employed in an administration role with [Employer 1]. Her de facto partner is also Fijian; he has been living in Australia for around 10 years and is a permanent resident. Their son was born in [year].

23. After arriving in Australia in December 2017, the applicant returned to Fiji once; for about 7 days in February 2019 to attend her grandmother’s funeral in Suva.

24. Regarding the land issues experienced by her parents, the applicant stated that she has limited knowledge of the details as she was a teenager at the time and her parents did not want to involve her or her brothers. She is unable to provide any further details or documents regarding those issues. Asked whether she fears harm in Fiji now because of her parents’ land issues in 2017, the applicant responded that she wants to answer honestly; she no longer fears harm in Fiji because of the land issues or for any other reason. The government in Fiji has changed; the current government was democratically elected, and she does not fear any harm from the government. She has read the protection visa refusal decision and agrees that she does not engage Australia’s protection obligations as a refugee or under complementary protection. However, she does not want to return to Fiji because she would not have the same opportunities or quality of life that she has in Australia. The cost of living in Fiji is high and wages are poor compared to Australia. Australia is the ‘land of opportunity’ and she wants to stay here for a better life.

25. I discussed with the applicant that her claims were unlikely to engage protection obligations as a refugee or under complementary protection and explained the concepts of persecution, serious harm, and significant harm. The applicant confirmed that she understood and agreed that she would not face any harm in Fiji that would cause her to be a refugee or engage complementary protection. Asked whether there was anything else she wished to raise about returning to Fiji, she stated that she now has a young child and returning to Fiji would affect her mentally and economically.

    Assessment

26. Based on the available evidence, I am prepared to accept that the applicant’s parents experienced some issues in early 2017 with officials of the then government regarding their farm property near Suva. The applicant was unable to provide details of what occurred and, accordingly, I am not able to make further findings about these claims. Based on the applicant’s evidence at the hearing, I find that she does not fear any harm from the current government or any other person in Fiji in connection with any land issues that her parents experienced in 2017. As such, I have not considered these claims further.

27. I accept that the applicant does not wish to return to Fiji because she would not have the same quality of life in terms of work opportunities and earnings as she would in Australia. I accept, based on the employment confirmation letter, that the applicant has been employed with [Employer 1] since December 2021 in an administration role. I also accept, based on the copy of the birth certificate, that the applicant has a young child who was born in Australia. Given the applicant’s level of education and work history in Australia, I find that she will be able to secure employment on return to Fiji. However, I accept that it is likely that she will be unable to earn as much and may not have access to the same work opportunities in Fiji as she does in Australia. I accept that this may cause economic disadvantage to the applicant and some degree of mental distress.

28. As discussed with the applicant at the hearing, general economic conditions in Fiji which may result in economic disadvantage, including wage disparity between Fiji and Australia, do not amount to persecution. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[2] The economic conditions faced by the applicant would apply to all citizens in Fiji.

    [2] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429

29. I find that the harm feared by the applicant, namely that she will not be able to earn a similar income or access similar work opportunities in Fiji compared to Australia, to not be for any of the reasons in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and
    s 5J(4)(c); that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct; are not satisfied.

30. Further, I find that the harm feared by the applicant does not amount to serious harm and therefore the requirement in s 5J(4)(b) is not satisfied. As discussed with the applicant at the hearing, while serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The courts have found this to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[3] I find that the applicant’s ability to earn less money in Fiji would not amount to serious economic hardship that would threaten her capacity to subsist. Regarding any mental distress that she may experience if she were required to return to Fiji, I acknowledge that serious harm may encompass mental harm. However, it must be of a serious nature. I find that any mental distress that the applicant may experience due to economic disadvantage in Fiji would not amount to serious harm.

    [3] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725

31. For the above reasons, I find that the applicant does not have a well-founded fear of persecution in Fiji and is therefore not a refugee. 

32. As I have found the applicant to not be a refugee, I have considered whether she satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, she will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.

33. I find that the harm feared by the applicant, namely that she will be unable to earn a similar income or have access to similar work opportunities in Fiji compared to Australia, and that she would experience some mental distress as a result, to not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[4] Any economic disadvantage that the applicant may experience due to general economic conditions in Fiji, and any mental distress that she may experience as a result, would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions.  As such, I find that the claimed harm does not amount to significant harm.

    Conclusion

    [4] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).

34. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). 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 the criterion in s 36(2).

    DECISION

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

   Mia Bailey
   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.

   …