2211582 (Refugee)
[2023] AATA 2378
•16 May 2023
2211582 (Refugee) [2023] AATA 2378 (16 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2211582
COUNTRY OF REFERENCE: Philippines
MEMBER:Simone Burford
DATE:16 May 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 16 May 2023 at 1:54pm
CATCHWORDS
REFUGEE – protection visa – Philippines – fear of harm from COVID pandemic and economic hardship – consent to decision without hearing and request for referral for ministerial consideration – claimed fears not a convention reason – applicant’s partner an Indigenous Australian and Australian citizen children identify as Indigenous – domestic violence and visa status used as control – partner’s imprisonment and death – best interests of children – as citizens, they cannot meet criteria – possible separation not significant harm as defined – strong support through school, community and church – referred for ministerial consideration – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1)(a), (4)(a), (5), 36(2)(a), (aa), (2A), 417
Migration Regulations 1994 (Cth), Schedule 2CASES
AUB16 v MIBP [2017] FCCA 2634
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
MIAC v SZQRB [2013] FCAFC
MZAEN v MIBP [2016] FCCA 620
SZRSN v MIAC [2013] FCA 751
SZSNX v MIBP [2015] FCCA 2271
WZARI v MIMAC [2013] FCA 788
1510675 (Refugee) [2018] AATA 1735Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [Age]-year-old citizen of the Philippines. She was born in Cebu, Philippines.
Sometime prior to 2015 the applicant entered into a relationship with an Australian citizen. They have two daughters who were born in the Philippines. They are now around [Age] and [Age] years old. Both children are Australian citizens. The applicant also has a [Age]-year-old son who remains in the Philippines.
According to movement records the applicant most recently arrived in Australia [in] May 2020 on a Visitor (subclass 600) visa. She had made several prior visits to Australia beginning in 2014.
The applicant applied for the visa on 20 July 2021. On 22 July 2022 a delegate of the Department refused that application.
The applicant applied for a review of that decision with this Tribunal on 10 August 2022.
On 22 March 2023 the applicant confirmed she waived her right to a hearing before the Tribunal and consented to her application being determined on the papers so that she could pursue an application for Ministerial intervention.
For the following reasons, the Tribunal has concluded that the decision of the delegate refusing to grant the visa should be affirmed. The Tribunal has also recommended the applicant’s case be referred to the Minister for consideration of Ministerial intervention.
Protection claims
Protection visa application
In her written protection application, the applicant stated that she was born in Cebu, Philippines. At the time the application was lodged she was separated. She is Filipino and a member of the Catholic faith. She was unemployed at the time the application was made.
The applicant detailed her claims for protection in her application for the visa. These were summarised in the delegate’s decision as follows (in summary):
· they have two Australian citizen children.
· their children are of Australian/Aboriginal descent.
· they have sole custody of the children.
· it is not safe for the children in the Philippines due to COVID-19.
· COVID-19 is worse in the Philippines.
· they don’t want to go back to the Philippines because they are not known there.
· they don’t have enough money to go back to the Philippines.
She was not interviewed by the Department. She submitted a statement, identity documents, and citizenship certificates for her daughters to the Department in support of the claims made in the application for the visa.
The delegate’s decision
On 29 July 2022, a delegate of the Minister refused the protection visa application. The applicant provided a copy of the delegate’s decision to the Tribunal.
The delegate found the applicant’s fear of harm from the COVID-19 pandemic in the Philippines is not for one of the reasons in s 5J(1)(a) of the Act. Therefore, the applicant was not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act.
The Tribunal found that the applicant’s fear of contracting COVID-19 if they returned to the Philippines cannot be considered ‘significant harm’ under s 36(2A) of the Act as the applicant will not be arbitrarily deprived of their life by a virus that has no perpetrator. Any other harm exhaustively listed under s 36(2A) of the Act that the applicant may be subject to would not be intentionally inflicted upon the applicant in the absence of a perpetrator and therefore would not be considered ‘significant harm’. Accordingly, the applicant was not a person in respect of whom Australia had protection obligations under s 36(2)(aa) of the Act.
Review application
On 10 August 2022, the applicant applied to the Tribunal for a review of the delegate’s decision.
On 9 March 2023 the applicant wrote to the Tribunal noting:
I am writing regarding my appeal for the decision of the Department to refuse an application for a Protection Visa. I am aware that this appeal is waiting to be assessed by the Administrative Appeals Tribunal.
I am aware that I do not meet the criteria needed to be approved for this visa, and that my appeal will be declined. I am currently being supported by a legal [service], who have advised this process is the best process to be seen for a Ministerial intervention pathway.
In support of her application, the applicant submitted a statement setting out her personal circumstances. She also submitted the following letters of support:
· Letter from [Ms A], Case Worker, [Organisation], dated 27 March 2023;
· Letter from [Dr B], Medical Officer, Aboriginal Health Team, Child and Adolescent Health Service, Government of Western Australia.
As noted above, Tribunal records indicate that the applicant confirmed on 22 March 2023 that she waived her right to a hearing before the Tribunal and consented to her application being determined on the papers so that she could pursue an application for Ministerial intervention.
Accordingly, the Tribunal has proceeded to determine the application for review without taking any further action to enable the applicant to appear before it.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
Country of reference
The applicant claims to be a citizen of the Philippines and provided a copy of her passport to the Department with her application.
The Tribunal finds that the applicant is a citizen of the Philippines, which is also the receiving country for the purpose of the refugee and complementary protection assessments.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s circumstances
In her application to the Department the applicant indicated she was applying for protection as it was not safe for her daughters to return to the Philippines because of COVID. She noted that they were in her sole custody and she was their only family in Australia. She noted that the children’s father, her former partner neglected them and did not want custody.
In her 2023 statement to the Tribunal the applicant provided further detail of her circumstances. She noted that:
I have been in Australia since 2018, and had spent time in Australia previously. My late ex-husband was an Australian citizen and my sponsor for my visa. My late ex-husband also identified as Aboriginal, and our two daughters also identify as Aboriginal.
During this relationship, [Mr C] perpetrated significant family and domestic violence towards me. My two daughters and I had to enter refuge where we resided for 9 months, and then entered transitional accommodation. My late ex-partner served 6 months imprisonment due to physical assault and strangulation against me. My ex-husband would not support me to gain permanent residency in Australia. This was a tactic of his family violence; he wanted to control me and have power over me. He also did not want me to have rights to work as he did not want me to work, have access to money or leave the house.
I want to stay in Australia because my children are Australian Citizens, and have lived here for the past five years. I want my children to stay here and be connected to their community and culture.
This is currently being fostered at their school. I worry that their Aboriginal culture would be lost if we were to return to the Philippines. My late ex-husband wanted the girls to know about their Aboriginal identity, and to be connected to their country and culture.
My daughters will also have more opportunity for education, health, and wellbeing in Australia. I believe it is in their best interests to stay in Australia, and to further develop their connection to their culture. My children feel safe and secure in Australia and I want them to continue to feel stability in Australia, where they have lived in for most of their lives.
[Dr B], a Medical Officer in the Aboriginal Health Team of the Western Australian Child and Adolescent Health Service, also provided a letter of support outlining the applicant’s family circumstances as follows:
The family has experienced considerable trauma having gone through FDV perpetrated by her husband and his subsequent imprisonment. She is the only caregiver for her two girls, and sadly her estranged husband was released from prison & has since committed suicide on [date]/11/21. [The applicant] and the children were in a refuge for an extended period and having finally been assigned for transition housing.
[The applicant] has been found to be a highly committed and engaged mother. She has brought the children for physical checks and developmental assessments and will be seeking further assistance from the Child Development Service. She has been trying to find ways for the children to engage and develop their Aboriginal identity and is wishing to stay in Australia so that they can continue with that journey. She is needing a path that will enable her to get the rights of an Australian citizen so that she can provide for the children, build their indigenous identity, and ensure they have adequate education. Please contact me if you have any questions.
[Ms A], a Case Worker at [Organisation] provided a letter of support detailing the applicant’s circumstances as follows:
I am writing in regards to [the applicant]’s request to be considered for a ministerial intervention pathway for her and her two young children to continue to reside in Australia permanently.
[The applicant] has been supported by our service since she entered PGC’s refuge accommodation due to a high-risk family and domestic violence (FDV) incident perpetrated by her late husband in 2020. [The applicant]’s late husband perpetrated ongoing FDV towards her which the children were exposed to. [The applicant] stayed in two of our refuges, before being approved for a transitional accommodation where she resided for less than a year prior to obtaining her own accommodation.
[The applicant] and her children have been in Australia since 2018. [The applicant]’s children have lived in Australia since they were [Ages]. The children are both settled in Australia and have a strong support network and connections through their communities through school and church. Both children are Australian citizens.
[The applicant]’s late husband identified as Aboriginal, and [the applicant]’s two children are Aboriginal as well. The United Nations Convention on the Rights of the Child states that all children have the right to practice their own culture, language, and religion. [The applicant]’s children will lose this connection to culture, country and their Aboriginal identity if they are not granted opportunity to stay in Australia. It is the best interests of the children’s development and wellbeing to continue to live in Australia.
There was limited other information before the Tribunal regarding the applicant’s circumstances. The applicant’s movement record indicates she first arrived in Australia [in] October 2014 on a visitor visa and departed [in] February 2015. She returned to Australia [in] November 2018, again on a visitor visa. She departed [in] May 2019 and returned [in] August 2019. She departed again [in] February 2020 and arrived again [in] May 2020 on a visitor visa. She has remained in Australia since that time.
Immigration records indicate the applicant was listed as the responsible parent on two citizenship by descent registrations on which [Mr C] was listed as the parent. [Mr C] was also listed as the contact in Australia for the visitor visa applications in the applicant’s name.
Analysis, reasons and findings
The applicant has submitted that she is ‘aware’ she does not meet the criteria for the visa and that it will be declined. Notwithstanding this, the Tribunal has carefully considered her claims as articulated in her original application for protection and the information regarding her circumstances which has been submitted to the Tribunal, individually and then cumulatively.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear, that it is well-founded or that it is for the reason claimed. The Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
The information before the Tribunal was relatively limited, however on the basis that it is plausible on the information before it and giving the applicant the benefit of the doubt, the Tribunal accepts that:
· The applicant was in a de facto relationship with an Australian citizen who identified as an Indigenous Australian and is now deceased;
· She is the sole parent of two Australian citizen children who identify as Indigenous and are recognised as such by Indigenous service providers within the Western Australian health care system;
· The applicant has a teenage son remaining in the Philippines who the Tribunal infers from the information before it is a child of a prior relationship.
The Tribunal notes that on the information before it, it appears that the applicant was not sponsored for a partner visa in Australia and did not hold a provisional partner visa at the time of her former de facto partner’s death. As such she would not meet the criteria for a permanent partner visa.
The applicant’s claims, as expressed in her application for protection and before the Tribunal, focussed on her concerns that she and her children will be at risk of COVID-19 in the Philippines and lack the funds to return to the Philippines.
She also made claims concerning her daughters’ Indigenous heritage, need to stay in Australia to be connected to their culture and the fact she is now their only surviving parent.
The Tribunal notes that to the extent the applicant claimed her children would suffer due to being returned with her to the Philippines, as her children are citizens of Australia, they are not considered to be owed refugee or complementary protection in Australia, by Australia. They are not ‘non-citizens’ and as such cannot meet the criteria for protection in ss 36(2)(a) or (aa). In any event, the children are not applicants for the visa.
COVID-19 related issues
The applicant claimed she cannot return to the Philippines with her daughters due to the risks of COVID-19. The Tribunal considered whether the COVID-19 pandemic gave rise to a claim for protection in the applicant’s circumstances.
As detailed in the delegate’s decision, country information indicated that as at 10 April 2022, a total of 3,681,374 COVID-19 cases and 59,769 (1.6%) COVID-19 related deaths had been recorded in the Philippines since the beginning of the COVID-19 pandemic.[1] The government’s response to the pandemic was reported to have been poor, with the Lowy Institute ranking the Philippines 79th among 98 nations it evaluated in January 2021. Immunisations were slow and there were varying levels of COVID-19 lockdown from 16 March 2020. The impacts of COVID-19 are likely to affect Filipinos of lower socio-economic status most severely.
[1] ‘Philippines Coronavirus Disease 2019 (COVID-19) Situation Report #99’, World Health Organization, 11 April 2022.
Filipinos most at risk of infection are those living in poor, densely populated urban settings, and any community with inadequate access to proper hygiene supplies and with constrained hygiene and sanitation practices and nutrition services.[2] It was reported in December 2021 that nearly 4 million people in the Philippines became poor in the first half of 2021 due to pandemic induced lockdown measures that reduced employment and domestic demand.[3]
[2] ‘Fighting COVID-19 in the Philippines: The Scalpel vs the Axe’, Ronald U Mendoza, The Diplomat, 14 May 2020; ‘COVID-19 Humanitarian Response Plan Philippines’, UN Office for the Coordination of Humanitarian Affairs, 11 May 2020, p.4.
[3] ‘Pandemic pushes millions in Philippines into poverty’, Reuters, 17 December 2021; See also: ‘How COVID-19 impacted vulnerable communities in the Philippines’, Fallen, D, world bank blogs, 10 November 2021.
Women and girls have been disproportionately disadvantaged by the impacts of COVID-19. Many Filipina women are employed in service industries such as retail, hospitality, and tourism, which contracted due to the impacts of COVID-19. Women were already overrepresented in the informal economy and lack labour and harassment protections.
In response to COVID-19, the government is supplementing 4Ps payment with additional subsidies and expanding the program to an additional 13.6 million households.[4] There have been delays and difficulties dispersing COVID-19 related cash grants to 18 million low-income families.[5] An April 2021 Asian Development Bank report indicates that the share of social services was to increase by 11.6 per cent in the Philippines 2021 budget expenditure plan. Social spending included programs to strengthen the health sector’s capacity and provide cash transfers for poor families.[6]
[4] World Bank Approves US$500 Million to Help Mitigate Impact of COVID-19 Pandemic’, The World Bank, 28 May 2020.
[5] ‘DFAT Country Information Report - The Philippines’, Department of Foreign Affairs and Trade, 23 August 2021, p.8; ‘COVID-19 G2P Cash-Transfer Payments Case Study: Philippines’, Cho, Y, Kawasoe, Y, Rodriguez, R, Valenzuela, M, The World Bank, May 2021.
[6] ‘Asian Development Outlook 2021. Financing A Green and Inclusive Recovery’, Asian Development Bank, 27 April 2021, p.314.
On 5 May 2023, the head of the UN World Health Organisation (WHO), declared “with great hope” an end to COVID-19 as a public health emergency, stressing that it does not mean the disease is no longer a global threat.[7]
[7] >
To meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal must be satisfied the applicant is a refugee, as defined by s 5H of the Act. As noted above, any fear of persecution must be well-founded and must have a refugee nexus, namely, the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a particular social group. The reason, or reasons, must be the essential and significant reason for the persecution (s 5J(4)(a) of the Act).
The Tribunal acknowledges the international public health crisis arising from the COVID-19 pandemic was a factor weighing on all nations. The Tribunal finds that there is no information before it, including in the 2021 DFAT Report,[8] suggesting or supporting a claim that the COVID-19 pandemic or the Philippines government’s response to it gives rise to a well-founded fear of persecution on the part of the applicant on return to the Philippines. The Tribunal is not satisfied that there is any evidence that COVID-19 or government responses to the pandemic constitute persecution or discrimination within the meaning of s 5J(4). In particular there is no information to suggest that the harm the applicant fears from COVID-19 arises for any of the reasons under s 5J(4)(a).
[8] ‘DFAT Country Information Report - The Philippines’, Department of Foreign Affairs and Trade, 23 August 2021.
In this regard, the Tribunal finds that whatever measures may be applicable to the population of the Philippines generally in response to COVID-19, do not, in the absence of additional considerations, amount to ‘systematic or discriminatory conduct’ for the purposes of the refugee criterion, or an intentional act or omission for the purposes of the complementary protection provisions. The Tribunal is not satisfied that any such additional considerations have been identified by the applicant. The Tribunal finds that there is no real chance or real risk the applicant would suffer serious or significant harm on the basis of COVID-19 or government responses to the pandemic on return to the Philippines.
Economic hardship
Similarly, while the Tribunal accepts the applicant may face challenges resettling in the Philippines and may be financially worse off relative to her circumstances in Australia, the Tribunal does not accept those circumstances give rise to any claim for protection.
The applicant did not provide significant amounts of detail regarding her economic circumstances in the Philippines. The Tribunal notes she lists several family members there, including a teenage son who the Tribunal infers is in the care of family members. The information suggests the applicant has family support in the Philippines.
The 2021 DFAT Report notes:[9]
The World Bank classifies the Philippines as a lower middle-income country. GPD per capita was USD3,486 in 2019. In 2018, services accounted for the largest share of GDP (56.2 per cent), followed by industry (34.8 per cent), and agriculture and fisheries (8.9 per cent). The Philippines’ economy had been growing strongly in recent years but took a significant hit in 2020 due to COVID-19, with negative GDP growth of -8.3 per cent for the calendar year. This contraction was cushioned by government COVID-19 economic stimulus packages and remittances from OFWs, which continue to account for approximately 10 per cent (around USD 22 billion for January to September 2020) of GDP. The World Bank expects economic growth to recover gradually in 2021-2022, assuming the pandemic is contained.
[9] ‘DFAT Country Information Report - The Philippines’, Department of Foreign Affairs and Trade, 23 August 2021, p.8.
Seeking economic benefits in another country, absent other considerations, would not normally give rise to an objectively well-founded fear of harm for the purposes of the refugee criterion, nor does it give rise to a reasonable apprehension of harm under the complementary protection provisions.
The Tribunal accepts the applicant may have poorer economic circumstances in the Philippines relative to Australia noting in particular that she is now a single parent; however, the Tribunal finds that notwithstanding the difficulties presented by COVID-19, there is no information to suggest the applicant would not be able to find employment in the Philippines or that she would be ineligible for government social supports there. There is no information to suggest she and her family members would not continue to have access to the means of supporting themselves to subsist.
For the avoidance of doubt, the Tribunal finds, based on credible country information, that the economic circumstances in the Philippines are generally not such as would meet the definition of serious harm contained in s 5J(5) of the Act.
In any event, the Tribunal notes that poor economic circumstances in the Philippines do not, in the absence of other considerations, give rise to a well-founded fear of harm for the purposes of the refugee criterion. In this respect, the Tribunal refers specifically to s 5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement at s 5J(4)(c), which requires that the persecution must involve systematic and discriminatory conduct. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4).
While the Tribunal accepts that the applicant wishes to remain in Australia for economic reasons, the Tribunal finds that there is nothing before it to indicate or suggest that the applicant would be denied the opportunity to work or would be unable to find any work in the Philippines. While the Tribunal accepts the applicant would have to resettle and in relation to finding employment, may have less disposable income available to her if she returned to the Philippines, the Tribunal does not accept that she faces a real chance of suffering persecution involving serious harm for one or more of the five reasons mentioned in s 5J(1)(a) of the Act if she returns to the Philippines.
Given these above considerations, the Tribunal finds that there is no real chance the applicant would suffer serious harm for one or more of the reasons mentioned at s 5J(1)(a) of the Act, should she return to the Philippines.
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to the Philippines on the basis of prevailing economic conditions in that country. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. To the extent that the definitions of ‘serious harm’ and ‘significant harm’ differ, the Tribunal is satisfied that economic hardship of the kind complained of by the applicant and falling short of denial of the ability to subsist does not constitute ‘significant harm’ of the kind contemplated by ss 36(2A) and 5(1).
The Tribunal also notes that in order to give rise to a real risk of significant harm under the complementary protection assessment, a similar motivation of harm towards the applicant from identifiable agents of harm is required. On the basis that the applicant has not provided any evidence of an identifiable agent of harm motivated to cause her significant harm in the Philippines, the Tribunal finds that she has not made out her case to the relevant standard.
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 the Philippines, there is a real risk that she will suffer significant harm now or in the reasonably foreseeable future, as a result of the prevailing economic circumstances in the Philippines as claimed.
The applicant’s children
As noted earlier, the applicant’s children are Australian citizens. The Tribunal accepts that their father is deceased and that they are in the care of their mother who is the sole surviving parent. They are not applicants for the visa.
While the applicant did not suggest, and the Tribunal considers it unlikely, that the children would remain in Australia if she were forced to return to the Philippines, the Tribunal has considered whether the applicant’s return to the Philippines and potential separation from her daughters gives rise to a claim for protection.
The applicant did not claim, and based on the evidence the Tribunal is not satisfied, that she has a well-founded fear of persecution on return to the Philippines for the reason she may be separated from her children. There was no submission that the harm arising from the possible separation of the applicant and her children is or would be the consequence of persecution for a reason covered by s 5J(1) of the Act.
The Tribunal finds that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to her by her separation from her children if she was returned to the Philippines, for the purposes of s 36(2)(a) of the Act.
The Tribunal notes that, in SZRSN v MIAC (SZRSN), it was claimed significant harm would arise from separating the applicant from his Australian children. The Federal Court (agreeing with the Federal Circuit Court) found in this case that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s 36(2)(aa).[10]
[10] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]–[49], upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]–[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Sipos J, 9 August 2013) at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefer and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]–[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm. See the Tribunal’s discussion of these issues in 1510675 (Refugee) [2018] AATA 1735 (13 April 2018).
The decision turned on the relationship between various aspects of complementary protection provisions. Firstly, the Court had regard to the reference in s 36(2)(aa) to Australia’s ‘protection obligations’ as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country, rather than in the State where protection is sought.[11] Secondly, the Court reasoned that the qualifications in s 36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of s 36(2B)(a) (relocation) and s 36(2B)(b) (protection from an authority) are to have any application.[12]
[11] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]–[62].
[12] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [63].
Further, the Court noted the circularity in the operation of s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The Court stated that the fact that the significant harm must be a consequence of removal strongly suggests that the removal itself cannot be the significant harm.[13]
[13] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [64]. The Federal Court also noted that being separated from one’s children is not an ‘act or omission’ as required by the relevant definitions of significant harm, but a consequence of an act. The relevant act is the act of removal from Australia: SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [47].
Lastly, the Court in SZRSN had regard to the ‘intention’ requirements in the s 5(1) definition of ‘degrading treatment or punishment’. The Court reasoned that separation from family (in that case, children) is the consequence of removal, and a consequence cannot be said to have an ‘intention’, so the act of removal itself cannot be said to be perpetrated by the State with the intention of causing ‘extreme humiliation that is unreasonable’.[14]
[14] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [65].
As such it appears that although the risk of significant harm envisaged by s 36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s 36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.[15]
[15] SZRSN was distinguished on its facts in MZAEN v MIBP [2016] FCCA 620 (Judge Riley, 24 March 2016), where a mother and her child claimed they would suffer significant harm as a result of being separated from one another in different receiving countries. The Federal Circuit Court commented in obiter that it may not be entirely correct that the consequences of the removal cannot be significant harm, given that the focus of s 36(2)(aa) is on the necessary and foreseeable consequences of the removal: at [49]–[50]. This aspect of MZAEN was followed in AUB16 v MIBP [2017] FCCA 2634 (Judge Riet muller, 31 October 2017), a case involving a family unit consisting of two Malaysian citizens and two Nigerian citizens. However, neither judgment considered this issue in detail, nor the intention element of the definitions of ‘significant harm’.
Further, in CSV15 v MIBP [2018] FCA 699 and CHB16 v MIBP [2019] FCA 1089 the Federal Court held that the requisite harm must be caused or inflicted by another person. This does not include self-harm.[16]
[16] CSV15 v MIBP [2018] FCA 699 per Collier J at [30]; CHB16 v MIBP [2019] FCA 1089 per Reeves J at [65]–[68].
For the reasons set out above, while the Tribunal accepts the applicant does not wish or intend to be separated from her children and would suffer emotionally as a result of any separation from them, it does not accept that this would constitute significant harm, as defined, if she were.
Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act due to being separated from her children.
Summary of findings
The Tribunal has carefully considered the claims of the applicant in her original application for protection and in information submitted to this Tribunal, individually and then cumulatively.
The refugee criterion
For the reasons outlined above, the Tribunal finds the applicant does not face a real chance of serious harm due to the prevailing economic circumstances on return to the Philippines now or in the reasonably foreseeable future.
Similarly with respect to any claims which might arise with respect to COVID-19, for the reasons outlined earlier, the Tribunal finds that whatever measures may be applicable to the population of the Philippines generally in response to the present COVID-19 crisis do not for any reason under s 5J(4)(a) amount to ‘systematic or discriminatory conduct’ for the purposes of the refugee criterion.
The Tribunal finds that there is no real chance of persecution being faced by the applicant now or in the reasonably foreseeable future for the essential and significant reason of any ground in s 5J(1), arising from harm caused to her by her separation from her children if she was returned to the Philippines for the purposes of s 36(2)(a) of the Act.
The Tribunal has considered the applicant’s claims individually and cumulatively but is not satisfied that the applicant would face a real chance of serious harm now or in the reasonably foreseeable future if she returned to the Philippines for any of the reasons claimed.
The Tribunal finds the applicant does not meet the criteria for protection under s 36(2)(a).
Complementary protection criterion
As the Tribunal has found the applicant is not owed protection under s 36(2)(a), the Tribunal has considered the applicant’s claims under s 36(2)(aa), the complementary protection ground.
Accordingly, the Tribunal has considered whether, on the evidence before it, there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to the Philippines.
The real risk test imposes the same standard as the real chance test. Noting the findings the Tribunal has already detailed relating to the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that she would suffer significant harm, now or in the reasonably foreseeable future, from any person or for any reason.
With respect to COVID-19 the Tribunal has found that whatever measures may be applicable to the population of the Philippines generally in response to the present COVID-19 crisis do not amount to ‘an intentional act or omission’ for the purposes of the complementary protection provisions with respect to the applicant.
With respect to harm due to the prevailing economic circumstances in the Philippines, the Tribunal has found those circumstances also do not amount to an ‘intentional act or omission’ for the purposes of the complementary protection provisions with respect to the applicant. In any event there is no information suggesting that the applicant would be unable to subsist in the Philippines.
For the reasons set out above, while the Tribunal has accepted the applicant does not wish to be separated from her Australian citizen children, it does not accept that she would be significantly harmed on this basis. The Tribunal further finds, on the evidence and based on the findings above, that the applicant does not face a risk of significant harm for any other reason on return to the Philippines now or in the reasonably foreseeable future.
Noting the findings as detailed above, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the Philippines, there is a real risk that the applicant will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
CONCLUSION
For the reasons given above, the Tribunal finds that the applicant has failed to demonstrate that she would suffer any real chance of serious harm on return to the Philippines or that she faces a real risk of significant harm on return.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
There are no other claims that arise from the evidence or country information and the applicant has not raised any further fears of harm on return to the Philippines.
Taking the applicant’s claims individually and then cumulatively, at their highest, they do not meet the required thresholds under either the refugee assessment criterion or the alternative complementary protection assessment criterion.
On the information before the Tribunal, the applicant does not satisfy 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 any of the criteria in s 36(2).
REFERRAL TO THE MINISTER
The applicant’s correspondence indicates that she wishes to seek Ministerial intervention. The Tribunal has treated this information as a request that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The applicant referred to the circumstances of her daughters and their need to remain in Australia to maintain their connection to their Indigenous culture. She also referred to her past history as a victim of domestic violence and her claims that her then partner used her visa status to exert control over her, perpetuating the family violence she was subjected to prior to his imprisonment and later death by suicide.
As noted above there was limited documentary evidence provided to the Tribunal to support the applicant’s claimed circumstances. However, the Tribunal considers that what was offered supports her general claims and account of her circumstances.
Her account of her circumstances was supported by a domestic violence case worker and a public health official, both from Western Australia. The Tribunal considers both to be credible and independent sources of information and notes they provided consistent accounts to those offered by the applicant. That information establishes that the applicant was a victim of domestic violence, for which her partner was convicted and served time in prison. He later died by suicide leaving her solely responsible for the children. It also established to the Tribunal’s satisfaction that her children are identified as having Aboriginal heritage.
With respect to her daughters, the Tribunal notes [Dr B], a Medical Officer with the WA Department of Health Aboriginal Health Team observes that the applicant is an engaged mother and ‘has been trying to find ways for the children to engage and develop their Aboriginal identity’ and is endeavouring to give the children access to appropriate care and education. [Ms A], a Case Worker at [Organisation] notes that the applicant and her children have been in Australia since 2018 when the girls were [Ages]. They are settled in Australia and have ‘a strong support network and connections through their communities through school and church’. [Ms A] goes on to state:
[The applicant]’s late husband identified as Aboriginal, and [the applicant]’s two children are Aboriginal as well. The United Nations Convention on the Rights of the Child states that all children have the right to practice their own culture, language, and religion. [The applicant]’s children will lose this connection to culture, country and their Aboriginal identity if they are not granted opportunity to stay in Australia. It is the best interests of the children’s development and wellbeing to continue to live in Australia.
The Tribunal notes that the applicant was not sponsored by her partner for a partner visa. Had she applied for a partner visa on arrival in Australia, based on the fact the couple had two children together it seems likely she would have been granted a provisional partner visa. Had this been the case, the fact that she had two Australian children and was the victim of domestic violence perpetrated by her partner would have likely qualified her for the grant of a permanent partner visa regardless of whether there was a continuing relationship with her former partner. Alternatively, she may have been eligible as her sponsor had died.
The exemptions which apply to the grant of a permanent partner visa following the withdrawal of sponsorship or in the absence of an ongoing genuine and continuing relationship explicitly recognise the importance of Australian citizen children being able to remain in Australia with the support and, ideally, care and protection of both parents after family breakdown. They also seek to ameliorate the risk of visa status being used as a weapon of domestic violence, empowering victims of violence to leave abusive relationships without losing their visa status, reflecting the fact the Australian Government has ‘zero tolerance for domestic and family violence’.[17] Both considerations are present in the applicant’s circumstances.
[17] The Tribunal considers on the information before it that the applicant has been denied the opportunity to obtain a permanent visa which would enable her to remain in Australia with her daughters because she was in an abusive relationship where her visa status was used as a tool of control. As such her circumstances warrant Ministerial consideration.
101. Additionally compelling are the interests of her Australian citizen children of Aboriginal heritage. Indigenous Australian culture in many respects is integrally entwined with a connection to land. While it may be said the applicant’s children have both Filipino and Indigenous cultural heritage, it must be recognised that the applicant’s ability to foster their connection to their Indigenous culture will be seriously compromised if she is forced to return to the Philippines in a way their Filipino culture will not, in part that is because the Applicant is personally able to impart that cultural heritage to them. However, in fostering their Aboriginal identities she will be reliant on members of the Indigenous community here who can speak to their cultural stories and history. Further, a permanent visa will give the applicant the capacity to ensure the children maintain contact with family in the Philippines without the risk of being unable to return to Australia putting at risk their connection to Indigenous culture, language and country.
102. Australia has a range of international obligations engaged by the rights of the applicant’s daughters to maintain their cultural connection to their Indigenous heritage. These include provisions in the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights relating particularly to issues of family unity and cultural identity. In addition, the UN Declaration on the Rights of Indigenous Peoples recognises in particular the right of Indigenous families and communities to retain shared responsibility for the upbringing, training, education, and well-being of their children, consistent with the rights of the child. This will not be possible if the applicant and her children return to the Philippines losing contact with any Indigenous community links in Australia. In the Tribunal’s view the children’s best interests would be served by their mother having a permanent visa which would facilitate their remaining with her and in Australia. For Australian decision makers, the connection of the children to their Indigenous cultural heritage is of special significance and with respect to the best interests of children is a primary consideration. The Tribunal considers this aspect of the applicant’s case warrants Ministerial consideration.
103. It is not clear on the information before the Tribunal whether the applicant has exhausted the visa pathways in Australia which may be available to her as the custodial parent of Australian citizen children. However, given the particular circumstances of the children, the history of family violence and the limited resources available to the family, the Tribunal considers the applicant’s case should be referred to the Department for Ministerial consideration.
104. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’ and will refer the matter to the Department.
DECISION
105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Simone Burford
Senior MemberAttachment - 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.
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