2013224 (REFUGEE)

[2021] AATA 5312

2013224 (REFUGEE) [2021] AATA 5312 (1 DECEMBER 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2013224

COUNTRY OF REFERENCE:                   Taiwan

MEMBER:L. Symons

DATE:1 December 2021

PLACE OF DECISION:  Sydney

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

Statement made on 01 December 2021 at 6:04pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – participation in Sunflower movement and protest – regular arrest – torture – credibility issues – applicant’s purpose in Australia was to work – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 36, 65, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 July 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Taiwan, arrived in Australia [in] April 2019 as the holder of a Visitor visa. He was granted a Bridging visa A in association with his application for a Protection visa.

3. The applicant applied to the Department of Home Affairs (the Department) for a Protection visa on 9 April 2019. The Department refused to grant the visa on 31 July 2020. On 26 August 2020, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal, via telephone, on 10 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The hearing was adjourned to 26 November 2021.

5. The applicant appeared before the Tribunal, via telephone, for a resumed hearing on 26 November 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion. 

   CRITERIA FOR A PROTECTION VISA

7. The criteria for a Protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 AND FINDINGS

13. The applicant’s claims in his application for a Protection visa have been summarised as follows:

    ·He applied for a Protection visa in order to avoid the risk of being persecuted by the Taiwanese government.

    ·On 18 March 2014, he attended a protest against the Taiwanese government as part of the Sunflower Movement. On 24 March 2014, he was arrested by the Police and detained for 2 days. He was tortured by the Police when he was detained.

    ·Every year he was detained by the Police for one day. On many occasions he was warned by the Police not to attend any activities against the Taiwanese government.

    ·He will be persecuted by the Taiwanese government if he returns to Taiwan. He does not know who can help him in Taiwan. He does not know where it is safe for him to relocate in Taiwan. He does not think the Taiwanese authorities will protect him.

14. The applicant provided the Department with a copy of his Taiwanese passport issued [in] 2019 and valid until [2029].

15. The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 31 July 2020.

    Receiving country

16. The applicant claims to be a citizen of Taiwan and has provided a copy of his Taiwanese passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Taiwan. The Tribunal finds that Taiwan is the receiving country for the purpose of assessing his claims for protection under the refugee criteria and the complementary protection criteria.

    Third country protection

17. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has a right to enter and reside in any country other than his country of nationality.

    Assessment of claims

18. The applicant gave evidence to the Tribunal that his application for a Protection visa was prepared by a friend on his instructions which were true and correct. He was satisfied that his visa application was accurate and complete. There have been no changes in his personal circumstances since he filed his application for a Protection visa.

19. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, where he lived in Taiwan, his employment, why he left Taiwan and why he fears returning to Taiwan. The Tribunal found aspects of his evidence to be vague, evasive, implausible and unconvincing. There were inconsistencies between his written claims and his oral evidence. He made new claims during the hearing. His conduct in Australia was not consistent with his claims. The Tribunal finds that he is not a reliable witness for the following reasons:

20. First, in his application for a Protection visa, the applicant claimed that on 18 March 2014 he attended a protest against the Taiwanese government as part of the Sunflower Movement. He claimed that on 24 March 2014 he was arrested by the Police and detained for 2 days. He claimed that he was tortured by the Police when he was detained. He claimed that every year thereafter he was detained by the Police for one day. He claimed that on many occasions he was warned by the Police not to attend any activities against the Taiwanese government. The Tribunal discussed these claims with him during the hearing.

21. The applicant gave evidence that he attended a protest on 18 March 2014 in relation to the Sunflower Movement. When asked about the Sunflower Movement, he responded that they attended a protest on the street and a lot of people were beaten. When asked why it was called the Sunflower Movement, he responded because they were in a protest rally. When asked again why the movement was called the Sunflower Movement, he responded because they participated in a protest rally, a lot of people were involved and a lot of people were arrested.

22. The Tribunal asked the applicant what the protest was about. He responded that they just participated in a rally and wanted to sue the government. When asked why they wanted to sue the government, he responded they just wanted to protest and were beaten by the Police. When the Tribunal pointed out that people do not protest for no reason, he responded that they attended a protest rally and the Police beat them. It happened four or five years ago and he cannot recall the details. When asked where the protest was held, he responded on [a named] Road in Taipei. When asked what was on that road, he responded that he could not recall and it happened a long time ago.

23. The Tribunal asked that applicant what kind of people participated in the protest. He responded that a lot of people participated in the protest and he did not know all of them. When asked what happened at the protest, he responded nothing. He then stated that the Police beat them during the rally. They were beaten for no reason. He then stated that they threw stuff at them. Every year the Police ask them back to the Police Station and they beat them. When asked why they were asked to go back to Police Station every year, he responded that the Police kept a record on them and every year they reminded them of this at the Police Station. When asked how he knew he needed to attend the Police Station, he responded that he was reminded once. The Police went to his house and “grabbed” him. When asked when this happened, he responded that he could not recall.

24. The Tribunal asked the applicant what his role was in the protest. He responded that he put on a head band and protested. When asked when he last went to the Police Station, he responded that he did not recall. When asked whether anything else happened to him, he responded no. When asked why he thought he would have a problem if he returned to Taiwan, he responded that they (the Police) have his record and he will be reminded if he returns.

25. There are a number of inconsistencies in the applicant’s evidence. In his visa application, he claimed that he was arrested on 24 March 2014, detained for 2 days and tortured while detained. During the hearing, he made no mention of being arrested on 24 March 2014, detained for two days and tortured. He made a new claim at the hearing that he and others were beaten by the Police at a rally on 18 March 2014. In his visa application, he claimed that every year he was detained by the Police for one day and on many occasions he was warned by the Police not to attend any activities against the Taiwanese government. He made no mention of this at the hearing.

26. The applicant made new claims at the hearing that every year the Police ask them back to the Police Station and then beat them. However, when asked how they knew they had to return to the Police Station, he could only recall one occasion when the Police went to his house and grabbed him.

27. The applicant claimed to have attended a protest in relation to the Sunflower Movement. He knew nothing about the Sunflower Movement or what the protest was about. He made a new claim during the hearing that they wanted to sue the government but was unable to explain why they wanted to sue the government. He claimed that he could not remember details because of the time that had lapsed since the protest and yet was able to remember the exact date of the protest. The Tribunal finds this to be implausible.

28. The Tribunal raised as issues with the applicant his lack of knowledge of the Sunflower Movement or the reason for the protest and his lack of credibility. He declined to respond. The Tribunal raised as issue with him the inconsistencies in his evidence and the new claims he made during the hearing. He declined to respond. These issues raise concerns in relation to his credibility and the veracity of his claims.

29. Second, in his visa application, the applicant claimed that he will be persecuted by the Taiwanese government if he returns to Taiwan. He claimed that he does not know who can help him in Taiwan. He claimed that he does not know where it is safe for him to relocate in Taiwan. He claimed that he does not think the Taiwanese authorities will protect him. His conduct in Australia has not been consistent with these claims.

30. The records of the Department indicate that the applicant arrived in Australia [in] January 2019 on a Visitor visa that was valid until [April] 2019. He waited until 9 April 2019 before he applied for a Protection visa. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that if he was at risk of being arrested if he returned to Taiwan he would have obtained immigration advice and lodged an application for a Protection visa soon after his arrival in Australia.

31. The Tribunal noted that the applicant’s delay in applying for protection raised concerns in relation to his credibility and the veracity of his claims. The Tribunal noted that it may lead it to the conclusion that he applied for a Protection visa to extend his stay in Australia and work here as [an Occupation 1] and not because he is in need of protection. He declined to respond.

32. Third, during the hearing, the Tribunal asked the applicant what his plan was when he came to Australia. He responded that he just wanted to be [an Occupation 1]. When asked whether he came to Australia to work here as [an Occupation 1], he responded yes. This raises further doubts about the veracity of his claims.

33. Fourth, the applicant’s claims are not consistent with the country information. The country information indicates that in March 2014 hundreds of students invaded the Taiwan parliament’s main debating chamber to protest against a trade agreement with China and thousands of people rallied to support them. President Ma and the ruling Kuomintang (KMT) at the time had pursued closer trade and political links with China. The opposition Democratic Progressive Party (DPP) has pledged support for the students while they remain inside the parliament building.[1] Riot Police subsequently evicted scores of protestors from the parliament chamber as well as dispersing demonstrators outside using water cannons. Sixty one people were arrested for breaking into the Executive building.[2] The movement was dubbed the Sunflower Movement as the university students carried sunflowers.

    1 'Taiwan students occupying parliament 2014', BBC News, 21 March 2014, CX1B9ECAB10538.

    [2] 'Taiwan police clash with students in protests over trade deal', CNN, 25 March 2014, CX1B9ECAB10536.

34. The KMT suffered a significant local election defeat in November 2014 and the opposition DPP gained from the election result.[3] The new administration in Taiwan wasted no time in distancing itself from its predecessor. They withdrew charges against 126 students involved in anti-China protests.[4] 

    [3] 'Enduring impact of Taiwan's 'Sunflower Movement' one year on', Daily Mail (Australia), 17 March 2015, CXBD6A0DE4728.

    [4] 'New Taiwanese gov’t makes swift move to drop charges against sunflower movement activists', Hong Kong Free Press, 23 May 2016, CX6A26A6E13227.

35. The Tribunal discussed this country information with the applicant and noted that, in these circumstances, it was highly unlikely that he would have been detained by the Police every year. He declined to respond. The Tribunal noted that Taiwan is a democratic country with a reasonably effective and impartial Police force and justice system and expressed its doubts that the Police would have gone to his home and “grabbed” him or required him to attend the Police Station every year just for attending a protest. He declined to respond.  

36. These issues raise doubts in relation to the applicant’s credibility and the veracity of his claims.

    Other considerations

37. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility when assessing the applicant’s credibility. The Tribunal has also had regard to the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

38. Having considered all of the applicant’s claims and all the evidence, the Tribunal finds that the applicant is not a witness of truth. The Tribunal finds that he has fabricated his material claims for the purpose of obtaining a Protection visa.

39. The Tribunal accepts that the applicant was born on [date] in Taiwan. The Tribunal accepts that he completed High School in Taiwan. The Tribunal accepts that he worked [in a junior role] and then as [an Occupation 1] in Taiwan. The Tribunal accepts that he came to Australia because he wanted to work here as [an Occupation 1].

40. The Tribunal does not accept that on 18 March 2014 the applicant attended a protest against the Taiwanese government as part of the Sunflower Movement. It follows that the Tribunal does not accept any of his claims that flow from that. The Tribunal does not accept that he was or is of adverse interest to the Taiwanese authorities. 

41. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for any of the reasons claimed if he returns to Taiwan now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

42. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reason of his actual or implied political opinion or any other reason set out in s.5J(1)(a) of the Act if he returns to Taiwan now or in the reasonably foreseeable future. Therefore, the Tribunal finds that he does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

43. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

44. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Taiwan now or in the reasonably foreseeable future. 

1. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Taiwan, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that he does not satisfy the criterion in s.36(2)(aa) of the Act. 

   CONCLUSION

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

3. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

   DECISION

4. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…