2111955 (Refugee)

[2022] AATA 717

2111955 (Refugee) [2022] AATA 717 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2111955

COUNTRY OF REFERENCE:                   Thailand

MEMBER:Phoebe Dunn

DATE:2 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2022 at 2:24pm

CATCHWORDS
REFUGEE – protection visa – Thailand – victim of sexual assault – attacks by criminal gang – fear of killing – fear of forced prostitution – hearing invitation declined – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5H, 5J, 36, 65, 426
Migration Regulations 1994, 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 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 2 September 2021 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 Thailand, applied for the visa on 16 October 2018. The delegate refused to grant the visa on the basis that the delegate did not consider the applicant’s claims to be credible and as such was not satisfied that the applicant was a refugee within the meaning of s 36(2)(a) of the Act or was owed complementary protection under s 36(2)(aa) of the Act. The applicant appealed that decision.

3. On 3 November 2021, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 19 November 2021.  The applicant did not appear at the scheduled hearing and the matter was dismissed under s 426(1A)(b) of the Act.  The application was subsequently reinstated. The applicant was invited to a further hearing of this matter scheduled for 21 January 2022. By email sent on 28 December 2021, the applicant responded to the hearing invitation, declining the invitation and consenting to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.

4. By letter dated 10 January 2022, the Tribunal wrote to the applicant stating that the hearing had been cancelled and inviting the applicant to make any written submissions in support of her case by 24 January 2022, after which time the Tribunal would proceed to make a decision on the material before it.  The applicant did not respond and no submissions or supporting documentation has been received from the applicant.

5. This matter has therefore been determined on the evidence available to the Tribunal.

   Background

6. The applicant arrived in Australia on a tourist visa [in] August 2018.

7. The applicant applied for a protection visa on 16 October 2018.

8. In her protection visa application, the applicant provided the following information. She was born on [date] in [District 1 in] Kamphaeng Phet, Thailand. Her parents still live in Kamphaeng Phet, Thailand and she speaks to them by telephone weekly. She is of the Buddhist faith. She completed high school and a degree in [Subject 1] and worked as a sales assistant and consultant in a [business] prior to coming to Australia. She has never travelled to any other country prior to coming to Australia and has not sought protection from any other country. At the time of completing the application she was unemployed and was supporting herself with savings and support from others.

   Identity

9. The applicant provided a copy of her passport to the Department, valid [to] 2022.

10. In the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of Thailand. The Tribunal finds Thailand is her receiving country for the purpose of assessing her claims for protection. There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside in any other country for the purposes of the Act.

    Claims

11. The applicant made the following claims in her protection visa application, as summarised by the Tribunal. There were no supporting documents attached to the protection visa application:

    a.She met a man in college while studying there. He had a strong attraction to her and would approach her every day. She tried to ignore him but he became aggressive after she tried to avoid him. He started to harass her at her work and outside her work.

    b.He and his gang would look for her and harass her. Once he tried to assault her and touch her all over her body. She screamed and shouted for help and they left her alone when people came. She was crying and shivering and feared for her life.

    c.From then on they would catch her and bring her to a quiet place and would harass her. Her life was in danger.

    d.She tried to report him to police but there was no action taken as he is the son of a powerful man in her province.

    e.She tried to commit suicide many times as she was ashamed and feared for her life as the man told her that he would never let her be free and would find her if she tried to go anywhere and put her into a brothel. She tried to hide from her own family as she did not want to bring shame on them. He has threatened to tell her family and bring shame on her and them.

    f.She fled to Australia to escape the fear and physical, mental and emotional harm. She fears she will suffer too much stress, will become depressed and that it would be pointless to live.

    g.She fears that if she returns to Thailand she will be harassed, molested or even raped. She will be forced to work as a prostitute. She will be badly beaten.

    h.She is a young girl and doesn’t know where or how to go away.  He told her that if he cannot find her he will make her family suffer. Her family is happy that she can get away from him.

    i.The authorities cannot protect her as his family is very powerful.

    CRITERIA FOR A PROTECTION VISA

12. 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.

13. 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.

14. 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).

15. 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.

16. 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

17. 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

18. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s 5J of the Act in Thailand and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Thailand, there is a real risk that she will suffer significant harm.

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

20. As identified above, the Tribunal formed the preliminary view that there was not sufficient evidence before it to be satisfied that the applicant faced harm for the reasons she claimed, or for any other reason if she returned to Thailand now or in the foreseeable future. The Tribunal informed the applicant in the hearing invitation letter that it was not able to make a favourable decision on the evidence before it and was inviting the applicant to attend a hearing to give evidence and present arguments in support of her case. Despite this, the applicant declined the hearing invitation and consented to a decision on the papers.

21. The Tribunal gave the applicant a further opportunity to provide written submissions and documents in support of her case, but the applicant did not do so. The Tribunal also notes that the applicant did not respond to a request from the Department for further information. 

22. As such, the Tribunal only has the applicant’s written claims contained in the protection visa application before it to consider. As the applicant declined the hearing invitation, the Tribunal has not had an opportunity to test those claims. Having regard to the history of this matter identified above, the Tribunal considers it has given the applicant ample opportunity to appear before it and/or provide written materials in support of her claims and the applicant has declined to do so.

23. The Tribunal remains of the view that there is insufficient evidence before it on which to reach a positive decision on her claims. The applicant has provided very little detail about the claimed events such as when the events occurred or over what period the claimed events occurred or the location(s) of the claimed events.

24. The applicant has provided very little detail about when she first met the man and when he first commenced harassing her as claimed, such as the name of the man or the date and location of the meeting. She has provided very little detail about when the claimed harassment escalated to claimed sexual and physical assault. She has provided very little detail about the claimed sexual and/or physical assaults or the perpetrators of these assaults, such as the date or dates of the assaults, the name(s) of her attackers or the location of the attacks. The applicant has provided very little information about any injuries or other harm that she claims to have experienced as a consequence of the harassment or the sexual and/or physical assault, such as how she was harmed, what injuries she sustained, whether she sought medical attention for the injuries or whether she sought medical attention for the emotional distress or depression she claims to have experienced as a consequence of these events. She has not provided any details of any witnesses or any corroborating evidence in support of her claims. 

25. Further, the applicant has provided very little detail about her claimed efforts to report the man to police or their response, such as when and where she sought the help and who she sought the help from and what their responses were.  She has provided very little detail about why she does not consider the authorities would assist her other than to say that the man is the son of a powerful man. Further, the applicant has not provided a clear explanation about why she did not make any further efforts to seek assistance from the authorities or any other person. She has provided very little detail about why she could not move to another part of Thailand, other than to claim that they would follow her and force her into prostitution. The Tribunal considers the applicant’s explanation as to why she did not seek assistance from the police, being that the man’s father is powerful, to be vague and lacking in detail.

26. The Tribunal notes that in her protection visa application, the applicant states that she studied [Subject 1] at a technical college [between specified years] and then was employed at [a named business] from [specified year] to October 2018, when she left Thailand to come to Australia. The Tribunal notes that the applicant claims she met the man while studying and that he continued to harass her while she was working. On this timeline, the Tribunal assesses that the claimed harm occurred for a period of at least five years and up to nine years. The Tribunal does not accept that, if true, the applicant would have endured the claimed events over such an extended period without taking action earlier. The Tribunal has also considered the length of time that it took the applicant to leave Thailand and seek protection in Australia, noting that if the claimed events commenced while she was studying, then it took her between five years and nine years to do so. The Tribunal considers that this also raises concerns about whether her claims are genuine. The Tribunal has considered whether the claimed harassment may have progressively intensified over the years as providing a reasonable basis for the delay in seeking protection. However, on the limited evidence provided by the applicant, there is no evidence to suggest this occurred.

27. The Tribunal has not had the opportunity to raise its concerns with the applicant and consider any explanation from the applicant for the delay. The Tribunal also notes that the applicant did not respond to the Department’s request for further information and has not provided any further details in support of her application to the Tribunal, despite being offered repeated opportunities to do so. The Tribunal considers that the failure to provide further details to either the Department or the Tribunal in written or oral form gives rise to a concern about the genuine nature of the claims or the seriousness with which she took her visa application.

28. The applicant has also made contradictory statements in her protection visa application. First she stated that she tried to hide from her family as she did not want to bring shame to them but subsequently stated that they encouraged her to come to Australia to escape the situation. Second, she stated that she was not able to move elsewhere in Thailand because she was young and did not know where or how to go away and if she did so and the man couldn’t find her, the man would disturb her family and make them suffer. Notwithstanding this, despite saying she was young and did not know where or how to move elsewhere in Thailand, the applicant had the capacity to travel to Australia. The Tribunal does not consider this claim to be consistent with her capacity to travel to Australia. The Tribunal has considered whether the applicant’s claim is that she did not know how to relocate or travel to a different part of Thailand because it may be more difficult to move to another part of Thailand than to Australia for economic and employment reasons such as the cost of living and difficulties finding employment. The Tribunal has not had the opportunity to clarify this with the applicant. Noting that independent country information does not support a claim that it would be more difficult to relocate to another area in Thailand than to Australia for economic or employment reasons[1], the Tribunal does not accept any such claim. Further, the Tribunal also notes that the applicant has not provided any evidence that the applicant’s family has suffered the harassment from the man and his gang that she claims or fears would occur.

    [1] DFAT Country Information Report, Thailand, 10 July 2020 [2.12] –[2.17], [5.24]

29. Accordingly, on the basis of the evidence before it, the Tribunal does not accept that the applicant met a man while studying who pursued her and got angry after she declined his advances and tried to avoid him. The Tribunal does not accept that the man and his gang continued to pursue and harass her. The Tribunal does not accept that the applicant was sexually or physically assaulted by the man and/or his gang or that the applicant suffered physical or emotional harm at the hand of the man or his gang. The Tribunal does not accept that the applicant reported the harm to the police and that they did nothing because the man’s father is powerful. The Tribunal does not accept that she tried to report the harm to the police but was prevented from doing so because the man’s father was powerful. As the Tribunal does not accept that the applicant had experienced the physical, sexual or emotional harm she claims, it follows that the Tribunal does not accept the applicant’s claim that if she went elsewhere in Thailand they would find her and catch her and she will be killed, raped or forced into prostitution. It follows that the Tribunal does not accept that the applicant’s life is at risk or that she would be killed, raped, molested or forced into prostitution by the man or his gang if she were to return to Thailand. It follows further that the Tribunal does not accept that the applicant’s family will be made to suffer if they cannot find her if she moves.

    Does the applicant meet the refugee criterion?  

30. The applicant claims that if she returns to Thailand her life will be in danger at the hands of a man and his gang after she refused his advances. For the reasons identified above, the Tribunal does not accept the applicant’s claims.

31. Accordingly, the Tribunal finds that the applicant does not face a real chance of serious harm if she were to return to Thailand arising from the circumstances claimed by the applicant.

32. Having regard to the Tribunal’s findings and having considered the claims singularly and on a cumulative basis the Tribunal is not satisfied that if the applicant returns to Thailand now or in the foreseeable future, she would face a real chance of serious harm on the basis of her claims or for any other reason set out in s 5J(1)(a) of the Act.

33. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

1. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

2. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[2] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm because of her claims or for any other reason.

   [2] MIAC v SZQRB [2013] FCAFC 33

3. Therefore, 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 Thailand, there is a real risk that she 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).

   Conclusion

4. 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).

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

6. 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 criteria in s 36(2).

   DECISION

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

   Phoebe Dunn
   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.

   …