2200807 (Refugee)

2200807 (Refugee) [2023] AATA 4849 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Kate Khanh Hoang
CASE NUMBER:  2200807
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:Jessica Henderson
DATE:18 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 18 December 2023 at 5:47pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – anti-government protester – affiliation with Viet Tan members – delay in seeking protection – complementary protection criteria – conviction of drugs offences at a commercial quality in Australia – not fully co-operative with the authorities – trusted operative of an established drug dealing enterprise – extra-territorial jurisdiction of Vietnam’s Criminal Code – partially completed sentence – death penalty in Vietnam – compulsory military service – illegal departure from Vietnam – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 11 January 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vietnam, applied for the visa on 15 November 2021. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant met either the refugee or complementary protection criteria.
The applicant appeared before the Tribunal on 24 August 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The applicant was represented in relation to the review. The applicant’s representative attended the hearing by Teams.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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
The issue in this case is whether the applicant meets either the refugee or complementary protection criteria for seeking protection in Australia. For the reasons that follow, the Tribunal has concluded that the applicant meets the complementary protection criteria set out in s 36(2)(aa) of the Act.
Claims and evidence before the Department
The applicant applied for a protection visa on 15 November 2021. His claims for protections were essentially in the following terms:
a.He left Vietnam as a minor and didn’t know where he was going (he was following a man).[1]
b.He will be arrested and imprisoned if he returns to Vietnam because he has engaged in protests and human rights activities in Australia.[2]
c.He will be harassed and detained in Vietnam because he has attended protests and criticised the Vietnamese government in Australia. [3]
d.The Vietnamese government will arrest him wherever he goes in Vietnam, so relocation will not assist him. [4]
[1] System Generated PDF File of the applicant’s protection visa application generated Monday 15 December 2021 (PV Application) p19
[2] PV Application p20
[3] PV Application p20
[4] PV Application p20
The application attached photographs said to show the applicant’s participation in protests.
Delegate’s findings of fact
The delegate was satisfied that the applicant is of the Catholic faith, but that he had not (on his own account) experienced any harm in Vietnam because of his religion.
The delegate accepted that the applicant had attended two or three ‘major’ demonstrations whilst in Australia, one in Canberra and one in Melbourne in 2016. The delegate also accepted the applicant’s description of these demonstrations, one being to protest against the government’s handling of the Formosa spill and the other to commemorate the fall of Saigon. However, the delegate found that this relatively low level of participation was indicative of a lack of genuine interest in human rights.
The delegate referred to a photograph that the applicant provided showing him holding a sign depicting pro-democracy wording, which appears to be on the [social media] page of the Viet Tan and dated [date]. The delegate accepted that this one photograph of the applicant had appeared on the Viet Tan website. However, the delegate was not satisfied that the applicant had an adverse profile as an anti-government protester nor that the applicant would continue to engage in Viet Tan activities if he returned to Vietnam.
The delegate noted that the applicant had not claimed to have a social media account of his own where he expressed anti-government sentiment and found it highly unlikely that the Vietnamese authorities would become aware of the applicant’s involvement in political activities in Australia or of his photograph appearing on the Viet Tan’s [social media] page in [year].
The delegate accepted that the applicant had departed Vietnam illegally by boat, but not that his illegal departure put him at the requisite level of risk on his return.
The delegate was concerned about the applicant’s delay in seeking protection in Australia, noting particularly that the applicant absconded from community detention in October 2013, failed to lodge a valid TPV/SHEV application prior to the October 2017 deadline, and was only able to lodge a valid application because he is affected by the decision in DBB16.[5] The delegate found that the applicant would have sought protection earlier if he had genuinely come to Australia for that purpose.
[5] DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178
Claims and evidence before the Tribunal
On 1 September 2023 the Tribunal received an email from the applicant’s agent, with attachments. The attachments included a procedural chronology from the applicant’s arrival in Australia to his release into the detention centre in which he presently resides (Chronology), submissions from the applicant’s agent (Submissions), and the sentencing remarks from the applicant’s conviction for drug related offences (Sentencing Remarks).
The Submissions set out the applicant’s claims in the following terms:
Claims
11. The applicant has provided evidence of his attendance at protests in Australia and [social media] activities which are deemed critical to the Vietnamese government, and he would be imprisoned by the Vietnamese authorities for these activities.
12. The applicant claims that his affiliation with Viet Tan official members could be viewed as an implied membership of Viet Tan, and therefore he would be arrested upon his returning to Vietnam.
13. For accumulative reasons, being the applicant have left Vietnam illegally, had a criminal charge in Australia with an imprisonment term on drugs offences at a commercial quality that could face a life or dead sentence in Vietnam, being a Catholic, had not serve compulsory military services in Vietnam, implied member of Viet Tan, and publicly made critical opinions against the Vietnamese government, the applicant would be severely punished and imprisoned in Vietnam.
The first two of these claims do not represent a significant departure from the applicant’s previous claims as articulated to the Department. The Tribunal is no more persuaded of them than the Department was, for broadly the same reasons. It is not necessary to go into further detail in relation to those claims, however, because the third of the applicant’s new claims raises an issue that has persuaded the Tribunal that the applicant is entitled to complementary protection.
The applicant’s conviction and sentence for drug offenses in Australia
The Submissions characterise the applicant’s criminal conviction in Australia as “an imprisonment term on drugs offences at a commercial quality that could face a life or dead sentence in Vietnam”.
In fact, the Sentencing Transcript describes the quantum as “…significantly above the commercial quantity, around 47 times more…” The applicant was observed loading more than 14kg of cannabis into his car, and police later found a similarly significant amount in his residence. The total amount of money that the applicant was charged with handling in relation to dealing drugs was over $140,000. The objective seriousness of the offending was in the mid to upper range.[6]
[6] Sentencing Transcript p 40
Fortunately for the applicant, the Justice of the Supreme Court of the Northern Territory who sentenced him appreciated a very significant degree of hardship and desperation in his still relatively short life. Noting that he also pleaded guilty at the first opportunity and his expressions of remorse, her Honour sentenced him to an aggregate term of 3 years’ imprisonment suspended after the first 2 with an operational period of 2 years from the date of release (which has not yet elapsed). The sentencing remarks also included some comments to the effect that the applicant’s co-operation with the police had been minimal, as he had not offered any information to the police into the source of the cannabis, what was to be done with the money, or how he became involved in the enterprise. Her Honour also noted that it was unlikely that the applicant would have been trusted with the quantum of drugs and money that he held if he wasn’t known as a willing and reliable participant in the drug network.
The applicant says in his Submissions:
38. The applicant is a citizen of Vietnam, and would be subject to the Vietnamese penalty code. Article 6 of the Penal Code of Vietnam regulates crimes committed outside the territory of the Socialist Republic of Vietnam by Vietnamese citizens which this Code defines as crimes, individual may be examined for criminal liability in Vietnam according to provision of this code.
…
39. According to the Vietnamese law, a similar drug related crime as committed by the Applicant is subjected to a more severe punishment in Vietnam. The term could be 10-15 years. The applicant has only sentenced to serve 2 years imprisonment in Australia.
40. The applicant concerns that he would face another prison term for his criminal offences in Australia upon his return to Vietnam…
DFAT confirmed in January 2022 that Article 6 of Vietnam’s Criminal Code ‘gives broad extra-territorial jurisdiction for crimes, meaning that a crime under Vietnamese law that is committed outside of Vietnam may be punishable under Vietnamese law.’[7]
[7] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 11 January 2022, at [5.11], p.30
The principle of double jeopardy applies in Vietnam; DFAT has previously reported advice that persons convicted overseas of serious crimes who have completed their sentences and returned to Vietnam cannot be subject to further trial in Vietnam for the same crimes.[8] More recently DFAT reports only that it is unaware of cases of double jeopardy in practice.[9]
[8] ‘DFAT Country Information Report Vietnam’, Department of Foreign Affairs and Trade (DFAT), 21 June 2017, p.19
[9] 'DFAT Country Information Report Vietnam', Department of Foreign Affairs and Trade, 11 January 2022, at [5.11], p.30
Unfortunately, it is not clear to the Tribunal that this applicant would be regarded by the Vietnamese authorities as having completed his sentence, thus engaging the principle of double jeopardy. He completed only two years of what was actually a three sentence and the operational period of two years for the expiry of his suspended third year imprisonment has not yet elapsed. The Tribunal has real doubts about whether the Vietnamese authorities would regard this as a complete sentence. The Tribunal considers it more likely that the Vietnamese authorities would consider this a partial sentence, still subject to potential further sanction in the event of any misdemeanour or provocation of the authorities.
The Tribunal has reviewed a volume of literature and is satisfied that Vietnam has some of the harshest drug laws in the world. Possession or smuggling of 5 kilograms or more of cannabis is punishable by death.[10] The applicant has pleaded guilty in an Australian court to possession of more than four times that amount and has served only two years in an Australian prison as a result. The Tribunal considers that there is a real risk that the Vietnamese authorities would consider this a manifestly inadequate penalty.
[10] The Death Penalty in Vietnam Report compiled for the 6th World Congress against the Death Penalty Oslo, June 21-23 2016 at accessed by the Tribunal on 18 December 2023.
The 2022 DFAT Report makes the following comment about the death penalty in Vietnam:
4.4 The 2015 Penal Code states that there are 18 crimes for which the death penalty is applicable, including: high treason; espionage; rebellion; terrorism; involvement in the production, transporting, or trading of narcotics; murder; child rape; and taking bribes…
4.5 Death penalty data is a state secret. Amnesty International, while not able to access exact figures, notes in its 2020 report on the death penalty that ‘Viet Nam [is] believed to resort to the death penalty extensively’. DFAT understands that the number of executions is growing and that many of the executions are drug-related…
The Tribunal finds that there is a real risk that the applicant could be resentenced in Vietnam to the death penalty if his Australian conviction comes to the attention of the Vietnamese authorities.
Military service and illegal departure from Vietnam
The applicant says in his submissions:
42. Military service is compulsory in Vietnam for all male citizens between the age of 18 and up to 27. The period of service is 24 months. The applicant is a Vietnamese citizen. He left Vietnam when he was 16 and had not served a day in miliary service. The applicant is currently 26 years old and he would be definitely interviewed upon his arrival by the Vietnamese authorities in regard to his record of military service wherever he lives in Vietnam. The applicants (sic) would be expected to tell the truth about his activities and where about since he left Vietnam in 2013. Then, the Vietnamese authorities would be aware of his activism history, fail asylum seeker status and criminal charges in Australia.
DFAT Report 2022 says:
3.110 Vietnam enforces compulsory military service. Men aged between 18 and 25 must complete two years of military service while women can volunteer. Some people attempt to avoid this service, including by paying bribes. If avoidance is detected and prosecuted, they may face a fine or prison term, especially for repeat offenders. Desertion is a criminal offence that can carry penalties including community service or up to 12 years’ prison, the latter only applying to serious offences such as desertion in war time or leaking Government secrets. DFAT is unable to comment on the prevalence of desertion or avoidance or the consequences, outside of criminal sanctions mentioned above, of these activities.
The applicant left Vietnam for Australia prior to the age at which compulsory military service begins and would be returning the year that the compulsory service ends. The Tribunal accepts, as the delegate did, that the applicant left Vietnam illegally. The Tribunal considers that there is a real risk that his re-entry into Vietnam might trigger an enquiry by the Vietnamese authorities into the applicant’s activities in Australia, as a result of which his conviction may come to light.
The Tribunal accepts that if the applicant is directly asked by the Vietnamese authorities how he has spent his time in Australia he must disclose that he has been convicted of a drug related offence, and that the Vietnamese authorities do then have the capacity to enquire of the Australian government for further details, in the course of which there is a risk that the sentencing remarks in relation to the applicant may become available to the Vietnamese authorities. Those remarks include that the applicant was not fully co-operative with the authorities and that he was most likely a trusted operative of an established drug dealing enterprise.
The Tribunal considers the applicant’s concern that he may be sentenced to time in prison in Vietnam to be overly optimistic. The Tribunal thinks it more likely, in light of the current increase in death sentences for drug dealings, that the applicant will be sentenced to the death penalty.
The Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Vietnam there is a real risk that the applicant will suffer significant harm.

There is no evidence before the Tribunal that would indicate that the applicant has a right to enter and reside in any third country for the purposes of s 36(3) of the Act and the Tribunal finds that he is not excluded from Australia’s protection by s 36(3) of the Act.
The Tribunal is satisfied the applicant is a person to whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Jessica Henderson
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.
…

[2023] AATA 4849

18 December 2023

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