2100442 (Refugee)

[2024] AATA 2125

2100442 (Refugee) [2024] AATA 2125 (3 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ian Singer (MARN: 0001947)

CASE NUMBER:  2100442

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Rosa Gagliardi

DATE:3 March 2024

PLACE OF DECISION:  Australian Capital Territory

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

Statement made on 03 March 2024 at 6:33pm

CATCHWORDS
REFUGEE – protection visa – Indonesia – death of Australian citizen husband – minor child – Australian citizen son’s experience of racism in Indonesia – Australian citizen son not covered by provisions of Migration Act 1958 – non-attendance at hearing – tribunal unaware of applicant’s immigration status and advice received – applicant eligible to apply for spouse visa after husband’s death – applicant can apply for ministerial intervention – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417, 499
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIAC v SZQRB [2013] FCAFC 33

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 18 December 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 Indonesia (a matter the Tribunal accepted) applied for the visa on 27 December 2018. The delegate refused to grant the visa on the basis that the applicant was making claims on behalf of her Australian citizen child but did not have claims of her own.

   The applicant’s engagement with the Tribunal

3. On 19 December 2023 the Tribunal wrote to the applicant to invite her to a hearing to have been held on 12 January 2024 at 12:30pm [EST].  The Tribunal explained that it had considered the material before it but was unable to make a favourable decision on this information alone.

4. The invitation also advised the applicant that if she was unable to appear before the Tribunal to attend the hearing as scheduled a request should be made in writing as early as possible, setting out the reasons for making the request. The Tribunal highlighted that it would only make changes to this hearing if satisfied that there were good reasons for doing so.  The Tribunal also asked the applicant to provide any material she intended to rely on by 5 January 2024.

5. On 21 December 2023, [the] applicant’s putative partner, rang the Tribunal to postpone the hearing scheduled on 12 January 2024 for approximately 6-8 weeks, as the applicant had a change of solicitors.  The Tribunal wrote to the applicant stating the matter of postponement had been carefully considered by the Member, however, it was considered that it would be best to proceed to a hearing as soon as possible so that issues in contention could be highlighted. The Tribunal also noted that it could give the applicant time to provide further information after the hearing should she or her representative require further time to make submissions.  The Tribunal advised that the Member had considered that in the circumstances a postponement of three weeks was appropriate and that a hearing would be rescheduled for 2 February 2024.

6. On 11 January 2024, the Tribunal wrote to the applicant to invite her to a hearing to have been held on 2 February 2024 at 10.00am [EST]. 

7. On 30 January 2024, the applicant’s migration agent wrote to the Tribunal stating that due to unforeseen circumstances, they were requesting a postponement of at least another month as the applicant had fallen from a ladder at her home and needed time to recover. 

8. The Tribunal carefully examined the medical evidence submitted to support the applicant’s claims that she could not partake of a hearing on 2 February 2024.  The Tribunal noted, however, that the medical evidence indicated that the applicant was unfit for work from
   11 January 2024 to 19 January 2024 - a period that had already lapsed as of 30 January 2024 when the applicant’s communication was received.  The Tribunal also noted that the medical evidence did not refer to the applicant having fallen off a ladder.  Instead, a [Health] Service discharge report, dated 13 January 2024, referred to the applicant having had [a medical condition] and that as a result she had a [procedure].  She had been in hospital for two days.

9. On 30 January 2024, the Tribunal wrote to the applicant’s migration agent stating that it was unclear from the evidence how the applicant could not participate in a hearing over the telephone, even if it would be difficult for her to attend in person, so as to cause her minimum inconvenience or discomfort. This was particularly so as the issues were straight forward, and the Departmental decision made it clear that there were no issues of credibility to discuss or matters which involved a lengthy hearing. The Tribunal advised that the Member saw no value in continuing to delay this matter given the nature of the issues submitted in the application.  As such, the Tribunal notified the applicant that unless compelling reasons were provided that the hearing should once again be delayed, the applicant must assume it would proceed on 2 February 2024 at 10.00am as scheduled, by telephone and that the migration agent could also be on the phone simultaneously.

10. The Tribunal’s records show that the applicant was reminded of the various hearings to have been held by SMS, including that of 2 February 2024.  The Tribunal spoke on 2 February 2024 to the migration agent to advise that it wanted to be fair to the applicant, but it would also need to treat matters appropriately and that the review process could not be delayed indefinitely to ensure the applicant remained onshore.  The migration agent stated the applicant needed further time to provide evidence.  She could not provide useful information at that time.  The applicant authorised the migration agent to seek another postponement to enable the applicant to provide additional information.  The Tribunal stated it would treat the 2 February 2024 as a commencement of the hearing and would adjourn it for another two weeks.

11. On 7 February 2024 the Tribunal wrote to the applicant to invite her to a hearing to have been held on 28 February 2024 at 1.30pm [EST].  Again, the applicant was reminded via SMS that the hearing would proceed on 28 February 2024 as scheduled.

12. On the day of the hearing the Tribunal attempted to call the applicant but there was no answer, and the applicant did not appear for the hearing.  Nor did she provide any reasons why she was unable to attend.  No further submissions were provided, and the migration agent wrote to the Tribunal on 28 February 2024 advising that the Tribunal should proceed to decision on the material before it.

13. The Tribunal acknowledges that proceeding to decision without a hearing is discretionary and that careful thought should be given to whether an applicant has appropriately been given the opportunity to provide evidence and present their case.  Given the Tribunal’s efforts to engage with the applicant and given the fact delaying the matter any further would not achieve a different outcome, the Tribunal makes this decision with the benefit of the material before it.

    CRITERIA FOR A PROTECTION VISA

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. 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

20. The issue in this case is whether the applicant is owed protection under s.36(a) of the Act or whether alternatively, she meets the criteria for s.36(2)(aa) of the Act under the complementary protection criteria.

21. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Claims at the time of application

22. The applicant wrote in her application:

    I MARRIED [MR A] ON THE 01 OCTOBER 2010. [MR A] IS A CITIZEN OF AUSTRALIA. HE IS FROM PERTH, AUSTRALIA.
    
    OUR SON, [SON A]WAS BORN ON [DATE]. 

    MY HUSBAND [MR A] PASSED AWAY ON [IN] OVEMBER 2016 IN [INDONESIA]. [SON A] WAS [AGE] YEARS OLD WHEN HIS FATHER PASSED AWAY.

    WHEN MY SON WAS [AGE] YEARS OLD, I ENROLLED HIM IN A [SCHOOL] NEAR OUR HOUSE. IN THE BEGINNING EVERYTHING WAS FINE.  BUT AFTER SOME TIME, WHEN THE TEACHERS AND [SON A]'S FRIENDS GOT TO KNOW THAT HIS FATHER WAS AN AUSTRALIAN AND [SON A] IS A CITIZEN OF AUSTRALIA, THINGS STARTED TO CHANGE.

    [SON A] CAME HOME LOOKING SAD. ONE DAY HE CAME HOME CRYING. WHEN I ASKED HIM WHY HE WAS CRYING, HE TOLD ME THAT NOBODY WANTED TO BE FRIENDS WITH HIM. THINGS GOT WORST WHEN HE ENROLLED IN [ANOTHER] SCHOOL. THE SAME THINGS HAPPENED TO HIM LIKE WHEN HE WAS IN [SCHOOL]. NOBODY WANTED TO BE FRIENDS WITH MY SON. EVEN THE TEACHERS WERE DISCRIMINATING HIM JUST BECAUSE HIS FATHER WAS AN AUSTRALIAN.  IT COME TO A POINT WHEN HE DID NOT WANT TO GO TO SCHOOL ANYMORE. 

    [IN] OCTOBER 2018, MY SON AND I TOOK A FLIGHT TO SYDNEY, AUSTRALIA. WE WANTED TO GET PROTECTION FROM THE GOVERNMENT OF AUSTRALIA AND TO LIVE IN AUSTRALIA. FURTHERMORE, MY SON HAS BEEN REGISTERED AS A CITIZEN OF AUSTRALIA BECAUSE HIS FATHER IS AN AUSTRALIAN.

23. The applicant also contended that the police and the authorities of Indonesia could not protect her son all of the time.

    REASONS AND FINDINGS

24. As the Department pointed out in its decision of 18 December 2020, the applicant’s claims are based on the discrimination faced by her Australian citizen son, [Son A]whilst attending primary school in Indonesia as a result of his Australian citizenship and on account of having been born to an Australian citizen father.

25. The applicant is making claims on behalf of her Australian citizen son.  She has not made claims that she herself will be harmed in Indonesia for any reason.  As the applicant’s son is an Australian citizen, he is not, however, covered by the provisions of the Migration Act 1958.  [Son A]is an Australian citizen and has the right to remain in Australia, and enjoy the benefits bestowed on him by virtue of that citizenship.

26. The Tribunal appreciates that the applicant’s son is still a minor ([age] years of age) and it is in his best interests that his mother resides with him be it in Australia or Indonesia. 

27. Had the applicant attended a hearing the Tribunal would have discussed with her the need to seek appropriate legal advice about her options for remaining in Australia lawfully, if that is indeed what she wishes to do.   It has been evident from the Departmental decision that applying for protection for herself on behalf of her son would not yield a positive migration outcome for her son.

    Ministerial intervention

28. Had the applicant attended a hearing the Tribunal would have also suggested that the applicant may wish to put her circumstances before the Minister to seek intervention under s.417 of the Migration Act in the event it is determined that her circumstances are unique and compelling. Given that the Tribunal is left to presume that the applicant has made this application because her son is contented in Australia as an Australian citizen, and it would not be in the interests of the mother and son to be separated while her son is still a minor, the applicant may wish to pursue the avenue of Ministerial Intervention – a matter that the applicant’s migration agent can advise her on.

29. Had the applicant’s husband not passed away (the Tribunal accepts the facts as the applicant has put them because she has provided the necessary documentation) and they had continued to be in a genuine and continuing spousal relationship then the applicant would have been entitled to apply for a spouse visa after her husband’s death.  Indeed, even after the applicant’s husband’s passing, she would have been able to apply for a spouse visa on the basis of meeting one of the exceptions where a Partner visa is granted on the basis that but for the death, the relationship would have continued as a genuine and continuing one.  The Tribunal does not know of the applicant’s current circumstances, and it appears she now has another partner, but these are matters that she needs clear legal advice on in terms of her options.

30. It would appear that somehow the applicant has not been advised appropriately or has been advised about the futility of this application, but the applicant has misguidedly wanted to continue on the basis that while it is still afoot, she can remain in Australia.

31. The Tribunal is prepared to recommend to the Department that Ministerial Intervention be considered for the applicant to remain with her Australian citizen son in Australia, however, in the context of this application, the Tribunal cannot give consideration to the matters raised by the applicant that her son fears harm in Indonesia. 

32. The Tribunal would urge the applicant and her migration agent to discuss putting forward any compelling reasons to the Minister that have not emerged on the papers and which the Tribunal could have assessed at a hearing had the applicant participated.

33. As the applicant has not raised any claims of her own to indicate she personally fears harm in Indonesia for reasons of her race, religion, nationality, membership of a particular social group or political opinion, pursuant to s 5J(1)(a) of the Migration Act, it follows that the applicant cannot meet s.36(2)(a) of the Act. The applicant has made it clear that she fears for her son’s safety in Indonesia.

34. Unfortunately, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection

35. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

36. The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that she will suffer significant harm.  The Tribunal has had regards to the applicant’s claims regarding her son, an Australian citizen, but as the applicant has not put forward claims of her own, the Tribunal is not satisfied that the applicant has established that she personally will suffer significant harm for any reason.

37. Having found that that there is no real chance that the applicant will face persecution for any reason, it follows that 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 Indonesia, there is a real risk that the applicant will suffer significant harm.  In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition.

38. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

39. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

40. 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

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

    Rosa Gagliardi
    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.

    …