2105343 (Refugee)

[2021] AATA 3820

2105343 (Refugee) [2021] AATA 3820 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2105343

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Tania Flood

DATE:30 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2021 at 12:21pm

CATCHWORDS

REFUGEE – Protection visa – Tonga –gang violence and killing within community – criminal convictions and imprisonment in Australia – applicant does not fear harm from gang members –reduced economic prospects – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5J, 36, 65, 499

Migration Regulations 1994, 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 29 March 2021 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 Tonga, applied for the visa on 11 August 2020. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Tonga, as someone with criminal convictions and having served time in prison.  

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

9. The issue in this case is whether there is a real chance the applicant will suffer serious harm if he returns to Tonga for reason of his race, religion, nationality, membership of a particular social group or political opinion or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga there is a real risk that he will suffer significant harm.

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

    Summary of claims

11. According to information contained in his application for a protection visa, the applicant is a [age]-year-old citizen of Tonga. He was born in [Area 1], Tonga and lived at a single address before coming to Australia. His parents reside in Tonga. He completed primary school and high school in Tonga. He has never been formally employed but worked at his family’s plantation as a farmer, selling crops at the market.

12. He arrived in Australia on [date] June 2018 as the holder of a [temporary] visa. He lodged an application for a Protection visa on 11 August 2020. On 29 March 2021 a delegate of the Minister refused his Protection visa application.

13. On 20 January 2021 his [temporary] visa was cancelled under s 501 of the Act.

14. The applicant made the following claims on his Protection visa application form:

15. He left Tonga to visit his family in Sydney. He cannot go back to Tonga due to ‘issues and mistreatment’ faced in his home country.

16. He claims that youth gang crime is high in Tonga, due to the lack of job opportunities, high alcohol abuse and drug overuse, and there is widespread anti-social behaviour, violence and physical harm towards innocent people. He comes from [Area 1] which is isolated and does not have much work and economic prospects. He could not continue living there due to the gang violence and killing within his community.

17. He was threatened and verbally abused many times and subjected to physical violence during brawls and fights. Some young people were beaten to death.

18. His parents called him and told him that anti-social problems have gotten worse due to the cyclones earlier his year; many families lost their homes and the financial stress and lack of job opportunities has caused health and mental problems for people. He is afraid to return to Tonga as it is too high risk and dangerous.

19. The authorities do not protect ordinary people in his community. As his village is located in a remote area, there is a lack of police presence and services to support young people. People are also scared to seek help from the authorities in fear of being detained or ‘accused of causing trouble’.

20. It is not safe for him to relocate and there is no where for him to move as most families’ homes were damaged or lost during the cyclones. He does not have any money or financial help from the government. He claims he may die if he goes to ‘unknown places’. He feels safe in Australia as he has friends and family who can look after him.  

    Protection Visa Interview

21. The applicant attended an interview with the Department on 8 March 2021. The interview was conducted with the assistance of an interpreter in the Tongan and English languages.

22. At the interview, the applicant stated that his parents, two brothers, wife, and two children live in Tonga and that he came to Australia for a ‘better life’. He claimed that he will ‘feel lonely’ if returned to Tonga because he has been rejected by his family and his community due to his criminal convictions and imprisonment in Australia. He stated that one of his friends had posted a picture on [social media] of him in front of the courthouse and that his criminality is known to ‘everybody’ in Tonga. He stated that those who are deported from any country are treated as ‘second class’. He claimed that his family including his parents, brother, and wife in Tonga will not assist him. The applicant also stated that his migration agent had lodged the protection visa application on his behalf. In her decision record, the delegate noted that the applicant appeared to be unaware of the contents of his application.

    Documents submitted to the Department

23. The applicant did not make written submissions to the Department in support of his visa application.

    Documents submitted to the Tribunal

24. The applicant has not made submissions to the Tribunal in support of his review application.

    Tribunal hearing

25. The applicant is in immigration detention and appeared before the Tribunal on 26 August 2021 via video link.  The Tribunal used the opportunity of the hearing to discuss with the applicant his background and claimed experiences in Tonga and his claimed fears of returning to Tonga.  His testimony and responses to concerns raised by the Tribunal with him during the hearing are included in the following findings and reasons.

    FINDINGS AND REASONS

    Country of reference

26. Attached to the Department’s file is a copy of the applicant’s passport which verifies his claimed identify and nationality.  In the absence of any information to the contrary the Tribunal is satisfied the applicant is a national of Tonga.

    Claimed fear of harm for reason of involvement in a violent incident in 2014

27. The applicant stated during the hearing that he is afraid that a person he had a physical fight with in 2014 might cause him trouble if he returns to Tonga.  The Tribunal notes the applicant also raised this concern with the delegate but failed at that time to mention an additional claim raised at hearing, namely that he was imprisoned in Tonga for 6 months for his involvement in this incident.  When asked why he had not mentioned this fact before he said he was scared to mention it until now.  While the Tribunal remains concerned about the late introduction of this information it is prepared to accept the applicant might have been reluctant to mention his prior conviction for fear of it harming his prospects of obtaining a visa to remain in Australia.   While not without some remaining doubts the Tribunal has afforded the applicant the benefit of the doubt and accepts he was jailed for six months as claimed for his involvement in the claimed incident in 2014.

28. The applicant stated that he is not certain whether the person he fought with is still in Tonga and he confirmed that there was no contact between him and the other person between 2014 and 2018 when he left Tonga.  Similarly, he said he has not heard from the person in the years he has lived in Australia.  The Tribunal put it to the applicant that based on his testimony it appears unlikely the person he fears would attack him if he returns to Tonga now.  The applicant responded that his adversary was hurt in the fight in 2014 and he said he might be recovered by now and in a position to exact revenge on him.

29. According to the applicant he remained in Tonga for four years following his imprisonment in 2014 before departing for Australia in 2018.  Based on his evidence he was not approached by his adversary or threatened in anyway by him during this period and he has not claimed to have needed to or made any attempt to conceal his whereabouts during this time.  Indeed, his evidence is that Tonga is a very small country in which it is virtually impossible to conceal your whereabouts   In the circumstances the Tribunal considers his adversary had every opportunity to pursue him and harm him in the four years following the applicant’s release from prison if he was motivated to do so.  Even if the applicant’s evidence is to be believed and his adversary suffered some physical injuries during their fight and required some convalescence the Tribunal is not satisfied on the available evidence that the person was physically incapacitated for four years.  Seven years have elapsed since this incident occurred and in the absence of any threats or any other indication the person is intent on harming the applicant the Tribunal considers the likelihood of this occurring in the future is remote. 

30. The Tribunal is satisfied there is not a real chance or a real risk the applicant will suffer serious or significant harm at the hands of the person he fought with in 2014 if he returns to Tonga.

    Claimed fear of harm from youth gangs

31. While the applicant did not reference the written claims made in this respect, noting the information contained in his application for a Protection visa the Tribunal asked him if he fears harm on return to Tonga due to youth gang crime generally or because of any harm he experienced from gang members in the past.  In his response the applicant gave no indication that he fears returning to Tonga for such reasons. On the contrary, he said he was a member of a gang himself in Tonga but does not fear harm from those gang members or because of his involvement in the gang.  Rather, he said his only fear is that he might re-join a gang because he will have nobody else to help or support him in Tonga.  He said he would regret that as he does not want to be involved in gang life again.

32. The applicant confirmed to the Tribunal that apart from the abovementioned incident in 2014 he suffered no serious harm in Tonga from gang members or anybody else. Therefore, the Tribunal does not accept the applicant was threatened and verbally abused many times and subjected to physical violence during brawls and fights as claimed in his application for a Protection visa.  Further, based on his testimony, the Tribunal is satisfied he does not fear harm in the future from gang members or as a result of youth gang crime generally. 

33. As to whether he will re-join a gang the Tribunal considers this to be speculative and based on his testimony does not consider he is motivated to do so. Based on his evidence the only reason for doing so would be to find some solace in the event he found himself without any support in Tonga.  For reasons outlined below the Tribunal does not accept the applicant will be without any support or assistance if he returns to Tonga and therefore considers the likelihood of him joining a gang for the reasons claimed to be remote.

34. For the above reasons, the Tribunal is not satisfied there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Tonga for reasons associated with youth gang crime, past or future, or due to him re-engaging in gang activities.

    Claimed fear of harm for reason of being a criminal deportee

35. The applicant claims he has been rejected by his family and his community due to his criminal convictions and imprisonment in Australia and that he will be treated as a second-class citizen in Tonga.  When asked to elaborate on how he expects to be treated on return to Tonga he merely said he believes that people will look down on him.

36. During the hearing the applicant confirmed that he spent six months in jail in Australia for a conviction of physical assault.   He said his close family and relatives in Tonga are aware of this.  He said his wife is seeking a divorce and he is not currently in communication with his two young children.  However, he said that he continued to communicate with his parents and siblings in Tonga throughout his prison sentence.  He said that since being placed in immigration detention he has found it difficult to communicate with his parents but said this was only due to technical issues and not because they have rejected his attempts at communication.  He said however that his siblings no longer want to communicate with him.  When asked why, the applicant said he did not know the reason for this.

37. The Tribunal put it to the applicant that information contained in his application for a Protection visa and his evidence to the delegate indicates he was previously in contact with his family once a month.  It was suggested to him that this, together with his oral evidence to the Tribunal regarding communication with his parents, does not support the claim that he has or will be rejected by his family because of his criminal history.  The applicant conceded on more than one occasion during the hearing that his parents will not reject him if he returns to Tonga.  

38. The Tribunal accepts the applicant is separated from his wife and presently has no contact with his children in Tonga but cannot be certain on the available evidence that this is strictly due to his criminal behaviour in Australia.  Despite his claims, based on his testimony, the Tribunal does not accept that the applicant has been or will be rejected by his parents if he returns to Tonga for reason of his criminal convictions.  Given the very vague evidence given by the applicant in respect of his siblings, the Tribunal also considers it unlikely the applicant will be rejected by his brothers in Tonga.   Accordingly, the Tribunal is satisfied that he will have familial support to draw upon if he returns to Tonga.

39. The Tribunal also discussed with the applicant country information it has sourced which indicates that criminal returnees could indeed face social stigmatisation including shunning and discrimination in employment but not likely societal or government serious ill-treatment.  The Tribunal also discussed with the applicant the reported opinion that the nature of an individual returnee’s criminal history is a major factor that determines how a deportee will fare on their return as is their connection to the country, culture and family[1].  While not condoning the applicant’s behaviour, the Tribunal noted his offence does not appear so serious as to illicit extreme prejudicial views from the community.  The Tribunal also pointed out that unlike many of the criminal deportees from America who effectively grew up outside of Tonga he was raised there and has only been absent from his country since 2018.  The Tribunal put it to the applicant that it doesn’t appear that reintegration in his circumstances will be insurmountable.    The applicant declined to comment on this information.

    [1] “The Forever No’: The Fate of Tonga’s Criminal Returnees, Borrowdale J, VICE, 6 February 2019

40. The Tribunal is prepared to accept that the applicant’s criminal behaviour in Australia is known to some extent within the community in Tonga and based on available country information it accepts that he may well encounter some social stigmatisation for this, such as being looked down upon.  However, as discussed with the applicant during the hearing the Tribunal does not consider that this would amount to serious or significant harm.  Indeed, the Tribunal notes and finds it significant that the applicant was able to live without encountering any serious or significant harm from 2014 to 2018 despite serving prison time in Tonga for a criminal offence.

41. For the above reasons, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Tonga for reason of his criminal history or for being a criminal deportee.

    Claimed fear of harm for reason of reduced economic prospects

42. The applicant did not voice any concerns during the hearing that he would be denied employment as a result of his criminal history and when asked if he feared returning to Tonga for reasons other than those outlined above he said no. However, the Tribunal acknowledges that his written claims indicate that he would find it hard to get a job and would have limited economic prospects [in Area 1]. During the hearing the Tribunal put it to the applicant that it accepts he will not have the same economic opportunities in Tonga as he could enjoy in Australia and that formal work opportunities in Tonga are limited. However, as discussed with the applicant his evidence is that he previously was able to live [in his home area] through subsistence farming and by performing odd jobs. The Tribunal put it to him that it appears likely he could do the same on return to Tonga and the applicant agreed he could.

1. In the circumstances, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Tonga for reason of him being unable to find work or due to limited economic prospects in Tonga.

   CONCLUSIONS

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).

3. 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). For the same reasons already articulated above, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga there is a real risk that he will suffer significant harm.  Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. 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

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

   Tania Flood
   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.

   …