2014130 (Refugee)

[2024] AATA 4090

2014130 (Refugee) [2024] AATA 4090 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014130

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Paul White

DATE:27 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 27 August 2024 at 12:24pm

CATCHWORDS

REFUGEE – protection visa – Indonesia – particular social group – victim of loan sharks – political opinion – demonstrations – threats from debt collectors – physical assault – credibility issues – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 98, 423, 499
Migration Regulations 1994, Schedule 2

CASES

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125

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 25 August 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Indonesia who arrived in Australia [in] January 2019 and applied for the visa on 6 April 2019 (PV application). The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant’s claims were credible. The delegate noted that the applicant’s claims are largely like those presented by several other applicants for a Protection visa. The only difference between the claim raised by the applicant and those appearing in other applications was the dates of claimed demonstrations and the type of business he owns.

3. The applicant appeared before the Tribunal on 5 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages. The applicant was not represented in relation to the review. The applicant gave evidence about his background, his migration history, and his claims for protection.

   The applicant’s background

4. The applicant arrived in Australia on a passport issued in [2016] valid until [2021]. The applicant obtained a new passport [in] 2021 issued in [Australia] and valid until [2026]. He said he had no difficulty obtaining his new passport at the Indonesian Embassy in Australia.

5. The applicant achieved [School] level education in Indonesia. He speaks Mandarin and Bahasa and has some capacity with the English language. The applicant said that in Indonesia he operated a [product] business in a rented shop. Prior to his arrival in Australia the applicant had travelled as a tourist to [specified countries]. In Australia he first worked in a [business] in [Suburb 1]. For the past 3 years has been employed as [an occupation 1].

6. The applicant said in Australia he is not a member of any community group. In his spare time he drinks coffee, goes to clubs or shopping centres, and occasionally gambles at casinos. He is not involved in politics. He has no contact with any religious community. The applicant said he has no family in Australia. He has some work colleagues with whom he spends times.

   Claims to Immigration

7. The applicant claimed in his PV application that he was shop owner in Indonesia. He claimed that between 2018 and 2019 he was arrested many times because of his attendance at demonstrations against government corruption. He claimed he was asked for a bribe and mistreated by government officials. The applicant claimed he feared that if he returns to Indonesia the government will arrest and detain him because of his attendance at these demonstrations.

   Tribunal hearing

8. The applicant claimed he came to Australia after he receive threats from a debt collector, and he was required to pay a loan shark. The applicant said there was no other reason he came to Australia other than to avoid threats from a loan shark. I asked the applicant whether he had now paid off the debt and he said, “not yet”. I asked why he had not completed paying the debt after being employed for so long in Australia. He said because of the high interest rates on his debts of 20%. I suggested to him that 20% was not a particularly high rate as even mortgage rates in Australia in years passed reached 19%. The applicant said he'd paid off 8 instalments of an [amount] rupia loan. He paid his last instalment in May 2018.

9. The applicant said he had made no payment since he arrived in Australia. I asked him why he had not paid. He said that he had living costs in Australia, and he had to pay for his wife and child in Indonesia. I asked how it came about that he had been on four holidays if he did not have sufficient funds to pay a loan shark. He said he had a wealthy cousin who paid for the holiday. He said the cousin had made no contribution towards his debt.

10. I asked the applicant whether he filled out his own PV application. He said a friend did it. And the friend got someone else to complete it. He said he did not know much about what was in it, except something about a demonstration that was not true. I asked him why he let his friend put that into a statement if it was not true. He said that they told him it would be more convincing. He said it was not a deliberate lie just a more convincing story. I said I didn't understand how that was not a deliberate lie. He said he went along with what they told him but now he is telling the truth.

11. The applicant said he had no documentation in relation to his loan and no supporting evidence in relation to any aspect of his claims. He said there was no evidence of any threat from a loan shark, but he did receive threats.

12. I asked him why he delayed his protection visa application for some months after his arrival in Australia. He said he was asking around and didn't get sufficient advice until it was time to apply. The applicant confirmed there was no other reason he left into Indonesia apart from the loan shark.

13. I asked what the applicant expected would happen if he returned to Indonesia tomorrow. He said the debt collector might come looking for him. I said that would appear to be unlikely as he had indicated that he had nothing to do with the debt collector for some six years. He said they can put a photo on the Internet or a WhatsApp group. I asked why they would do that given that they hadn't done it in the last six years. He said he does doesn't know if they will.

14. The applicant said his wife and son moved to [a location] in Jakarta in 2017 before he came to Australia.  The applicant said his wife and son had had no difficulty with the loan shark. I suggested if the loan shark was seriously interested in his money he would have approached his wife and child looking for the money. He said they don't know his wife. I put to him that his claim that he could not live in other parts of Indonesia because the loan shark would have capacity to track him down seemed at odds with the fact that they could not track down his wife near their former home in Jakarta. The applicant said that they have not met his wife, only him and they are just looking for him. The applicant said no one in the family had been contacted by the loan sharks since his departure.

15. I asked why he put down on his immigration form that he was Catholic yet had taken an oath as a Buddhist at the start of the hearing.  He said he had not changed his religion. He intended to convert to Catholicism one day as his wife and child are registered as Catholics on their national ID. He is not baptised but he plans to convert later.

16. I explained to the applicant that I thought there were serious difficulties with his claim including some issues around section 423 of the Migration Act that (in 423A) indicates if an applicant raises a claim that was not raised before the primary decision was made the Tribunal is able to draw an inference unfavourable to the credibility of the claim or evidence if satisfied the applicant does not have a reasonable explanation why the claim was not raised or evidence was not presented before the primary decision was made.

    The relevant law

17. 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.

18. 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.

19. 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).

20. 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.

21. 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.

22. Under s 5AAA of the Act the applicant has the responsibility to specify all the particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The purpose of the legislative amendment which created that responsibility was “to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible”.[1] The provisions in ss 5AAA and 423A act together to discourage delay and the submission of fresh claims or evidence to bolster existing claims in the absence of a reasonable explanation.[2] The wording of s 423A states that “the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence” raised or presented after the delegate’s decision if it is “satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made”.

    [1] Explanatory Memorandum, Migration Amendment (Protection and Other Measures) Bill 2014 (Cth), [74].

    [2] Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475, 489 [55] (Robertson, Murphy and Kerr JJ); 1819304 (Refugee) [2024] AATA 1971, [20] (Senior Member GAF Connolly).

23. S 98 of the Act indicates that “A non-citizen who does not fill in his or her application form is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”

    Mandatory considerations

24. 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.

    Analysis, reasons, and findings

25. The applicant travelled to Australia on an apparently genuine Indonesian passport, a copy of which is contained on the Departmental file. A copy of the applicant’s new passport was provided to the Tribunal at hearing. The applicant has at all times maintained that he is a citizen of Indonesia and encountered no difficulty obtaining a new passport. I find that he is an Indonesian citizen and has assessed his claims against Indonesia as his country of nationality and the ‘receiving country’.

26. The issues in this review are whether there is a real chance that, if the applicant returns to Indonesia, he will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

27. The applicant substituted the claims made to the delegate for the claim raised for the first time at the Tribunal hearing as the reason for his fear of persecution if he returned to Indonesia. The version of events which the applicant presented at the hearing was a new narrative of facts which the applicant alleged occurred before he left Indonesia. The claim raised in the hearing had not been raised in the PV application or otherwise before the delegate. Indeed, the claim was not raised by the applicant until the day of the Tribunal hearing.

28. At the Tribunal hearing the applicant admitted he provided false facts to the delegate when he lodged his application because he understood if he presented false claims, they would be stronger claims. The applicant’s explanation was a friend found someone to assist with the form. The applicant knew what was recorded in his PV application at the time of lodgement. He was prepared to deceive the Department because he was told he was submitting a more convincing claim. I am satisfied, based on the applicant’s own evidence that the claims he presented to the Department are not true. I am satisfied that the claims made to the Department do not give rise to a real chance of serious harm for the applicant should he return to Indonesia.

29. I do not accept that the applicant’s new claim to fear harm from a loan shark or debt collector is true. I did not find the applicant a credible witness. He admitted he was prepared to tell untruths to strengthen his claim. The claim about a loan shark presented at the hearing is set out above. I do not accept that the applicant was threatened by a loan shark. He has provided no supporting or documentary evidence of his loan. He has provided no supporting or documentary evidence that indicates he has paid any money to a loan shark or debt collector. He provided no supporting or documentary evidence that indicates he has received any threat. I accept that no threats have been made to the applicant’s wife, child, or other family members. His family in Indonesia have received no threat or documentation on his behalf or in his absence. Before he left Indonesia his family moved a short distance from their home without being found by the loan sharks. I do not accept that a loan shark or those related to him will use WhatsApp or the internet to identify and publicise the applicant’s return in a manner that will put him at risk if he returns to Indonesia when they have not done so in the past. I find his claim that he cannot go anywhere in Indonesia without being found is fanciful given they appear to have made no effort to find his family. I do not accept that the applicant faced any difficulty for reason of his debts. The fact that the applicant’s factual allegations altered the essence of his claim is relevant to the credibility of the applicant’s claim overall.

30. In support of these findings, I note the applicant applied for a protection visa more than five years ago. He delayed making his PV application for over 3 months after arrival in Australia. He delayed what he indicated was a truthful claim for over 5 years. I note that it is legitimate to take into account an applicant's delay in lodging an application for a protection visa in assessing the genuineness, or at least the depth, of the applicant's claimed fear of persecution (per Heerey J, Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347). I have considered his explanation but remain concerned that the applicant’s three-month delay in applying for a protection visa followed by a 5-year delay in presenting what he says are truthful claims. I find his delays are inconsistent with his claim that he left Indonesia only because he feared harm from loan sharks. He has worked to support himself and his wife and child in Indonesia over the last 5 years and totally ignored his claimed debt. I do not accept he faces a real chance of serious harm should he return to Indonesia for reason of any debt. I do not accept he has a genuine fear of persecution in Indonesia.

31. I do not accept the claims made by the applicant in the PV application or to the Tribunal. I do not accept the claims made at the hearing. I do not accept that there is a real chance that the applicant will suffer serious harm if he returns to Indonesia for the reason of his race, religion, nationality, membership of a particular social group or political opinion.

32. 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).

33. Having reached that conclusion, I have considered the alternative criterion in s 36(2)(aa). The applicants’ credibility is also relevant to the question of whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm. The Full Federal Court has said:

    Plainly, … if the claimant claims that he or she has suffered significant harm in the past but his or her account of the constituent events is not believed, then that is relevant to the question … of substantial grounds for believing there is a real risk of significant harm.[3]

    [3] SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; 138 ALD 26 at [31] (Robertson, Griffiths and Perry JJ).

34. I do not accept that substantial grounds exist for believing that the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Indonesia because of my findings about the credibility of the applicant’s evidence. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. The applicant does not satisfy the criteria set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criteria set out in s 36(2)(b) or (c) and cannot be granted a protection visa.

2. 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

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

   Paul White
   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.

   …