2213438 (Refugee)

[2024] AATA 4466

2213438 (Refugee) [2024] AATA 4466 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Yevgen Kyselov (MARN: 9803836)

CASE NUMBER:  2213438

COUNTRY OF REFERENCE:                   Kyrgyzstan

MEMBER:Mara Moustafine

DATE:9 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2024 at 11:47pm

CATCHWORDS
REFUGEE – protection visa – Kyrgyzstan – political opinion – member of opposition party – detained, beaten and warned after participating in protest rally – dissolution of marriage and deprivation of parental rights by judicial order – mental health – inconsistent and unsubstantiated claims and evidence – false information provided in tourist visa application – departure without difficulty – party defunct and leader has formed new party – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

Background  

1. The applicant claims to be a citizen of Kyrgyzstan and is [Age] years old. She arrived in Australia [in] April 2016 on a Visitor visa valid until 14 May 2016 and applied for a Protection visa on 10 May 2016.

2. On 8 September 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. According to her Protection visa application form, the applicant was born in [Year] in [Location] in the Jalal Abad region of Kyrgyzstan, where she lived until [Year], then lived in Bishkek until she came to Australia. The applicant identified her ethnicity as Kyrgyz. She speaks, reads and writes in Kyrgyz and Russian. She indicated that she completed high school in [Year] and a bachelor’s degree at [University] in [Year]. She identified her occupation as [an occupation 1] and stated that she was employed as [an occupation specialisation] at the [Employer 1] from [Year] to [Year]. The applicant stated that she was married and had [children] in Kyrgyzstan. Her parents, a sister and [brothers] are living in Kyrgyzstan. The applicant stated that she left Kyrgyzstan legally on her own passport, a copy of the biodata pages of which she submitted with her application. She visited [Country 1] from [March] to [April] 2016.

4. In summary, the applicant’s protection claims, as set out in her application form, were that she left Kyrgyzstan fearing persecution for her political opinion as a member of the opposition political Chyndyk party. She claimed that she and her husband participated in anti-government rallies in support of opposition leaders who were arrested by the regime. After a rally [in] August 2015, they were taken to a police station where they were beaten and warned that they may be arrested and charged with criminal activities. After that incident, she lived in constant fear for her life and safety. In March 2016, the State National Security Committee commenced a criminal case against opposition party leaders, including Chyndyk party leader Kumanychbek Kadyrov. They were accused of trying to oust the current regime and many political activists were arrested on false charges. The applicant decided to leave Kyrgyzstan and seek asylum as she feared she too might be arrested, unfairly tried and jailed. She does not believe the Kyrgyz authorities will protect her as they are all corrupt and work only to protect the existing regime and she will experience the same treatment from them wherever she is in the country.

5. The applicant attended an interview with the Department on 25 May 2022 which was conducted with the assistance of an interpreter in the Russian and English languages. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.

6. Documents submitted after the interview included copies of a translated letter from the State Border Service of Kyrgyzstan dated [February] 2020, stating that the applicant’s husband and [children] departed Kyrgyzstan [in] December 2019 and noting that there had been a marriage dissolution and the court had made a decision to of deprivation of the mother’s parental rights; and a letter from a psychologist dated 4 May 2022, advising that the applicant was suffering from anxiety and depression due to being away from her family and children.

7. The delegate refused to grant the applicant a Protection visa as they were not satisfied she was a person in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. In particular the delegate was not satisfied that the applicant was arrested and detained by the police, or any other Kyrgyz authority because she attended a rally [in] August 2015; nor that she had an adverse profile with the Kyrgyz authorities due to her political opinion, or for any other reason. The delegate was not satisfied that the applicant would face a real chance of persecution on account of her political opinion.

   The review application

8. On 12 September 2022, the applicant applied to the Tribunal for a review of the Department’s decision, a copy of which she provided for the purpose of the review.

9. The applicant was represented in relation to the review.

10. On 4 September 2024, the representative provided a submission in which he stated that the applicant maintained the same claims as submitted to the Department and was positive that she would be persecuted by the law enforcement authorities in Kyrgyzstan and would not be able to maintain a normal life without constant fear for her safety and wellbeing. A translated copy of the border control document dated [February] 2020, previously submitted to the Department was also provided.

11. The applicant appeared before the Tribunal on 13 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Russian and English languages.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant Law

12. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

13. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

14. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

15. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

16. If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

17. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Credibility

18. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    Analysis, Findings and Reasons

19. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

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

    Country of Reference

21. On the basis of her Kyrgyz passport submitted to the Department, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a citizen of Kyrgyzstan and considers Kyrgyzstan as the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria, respectively.

    Assessment of claims

22. The Tribunal has had regard to the evidence provided by the applicant, as well as relevant country information set out at length in the delegate’s decision.

23. Essentially the applicant claims to fear harm in Kyrgyzstan for reasons of her political opinion because she was a member of the Chyndyk Party and participated in anti-government rallies. She claimed that after a rally [in] August 2015 she was taken to a police station, beaten and warned that they may be arrested and charged with criminal activities. The applicant fears that if she returns to Kyrgyzstan, she may be arrested and imprisoned because of her participation in the rally in 2015.

24. The Tribunal did not find the applicant to be a credible and truthful witness and has concluded that the decision under review should be affirmed. In reaching this conclusion, the Tribunal has had regard to her inconsistent and unsubstantiated evidence on key aspects of her claims and other reasons detailed below.

25. The applicant’s evidence on central aspects of her claims was inconsistent between her Protection visa application and evidence at the Tribunal hearing. In her application the applicant claimed that the rally she attended [in] August 2015 was in support of opposition party leaders arrested by the regime. She also stated that the reason she left Kyrgyzstan in March 2016 was that the State National Security Committee commenced a criminal case against the opposition party leaders, particularly Chyndyk party leader Kumanychbek Kadyrov, accusing them of trying to oust the ruling regime, As many political activists were arrested on false charges, she feared she too might be arrested, unfairly tried and jailed.

26. By contrast, the applicant told the Tribunal that the rally [in] August 2015 was in protest at the unfair exclusion of the Chyndyk party from the election due to be held on 4 October 2015. Further, she told the Tribunal that she left Kyrgyzstan in March 2016 fearing arrest because the authorities found out about another rally being organised to overthrow the government for April 2016 and the names of leaders, including Chyndyk party leader Kumanychbek Kadyrov, were put on a ‘wanted’ list.

27. The applicant also provided inconsistent evidence about her employment in Kyrgyzstan. In her Protection visa application the only employment she identified was as [an occupation specialisation] at the [Employer 1] from 2004 to 2008. By contrast, the applicant told the Tribunal at the hearing that she worked as [an occupation 2] in the [Employer 2] from February to September 2008, as [an occupation 3] from 2004 to 2008 and, after spending some months in [Country 2] studying [subject 2], ran her own [business] from 2009 to 2010.

28. The applicant told the Tribunal that she joined the Chyndyk party in 2013 and was targeted by police as a result of her participation in some of their rallies and activities. Asked about her role in the party, the applicant said she was not a leader, but an organiser, responsible for organising security, food and sewing banners and flags for rallies. She did not have a close relationship with the leader Kumanychbek Kadyrov, although their paths had crossed.

29. Asked if she suffered serious harm in Kyrgyzstan, the applicant said identified only one occasion – when she was taken to the police station and beaten after the rally [in] August 2015. By her own evidence, however, she was not arrested or charged as a result of this rally or on any other occasion. While the applicant claimed she left Kyrgyzstan in March 2016 for fear of arrest, she confirmed that her name was not on the ‘wanted’ list, like that of Chyndyk party leader Kadyrov. At the same time, she claimed that ‘it could have been’ and that, as an organiser, she ‘would have been arrested’. As discussed with the applicant, the Tribunal considers these claims speculative and unsubstantiated by evidence. In light of this, as well as her evidence that she had no difficulty departing Bishkek airport in March 2016, the Tribunal is not satisfied, that the applicant was of any interest to Kyrgyz law enforcement authorities when she left Kyrgyzstan in 2016.

30. Asked why she feared returning to Kyrgyzstan now, the applicant now claimed that her name was still on the ‘wanted’ list over her involvement in the rally in August 2015 as a member of the Chyndyk party and that she would be detained at the airport in Bishkek on arrival. This is inconsistent with her earlier evidence that her name was not on the list. Moreover, as discussed with the applicant, the Tribunal finds it implausible in light of the changed political scene in Kyrgyzstan in the eight years since she left. By the applicant’s own evidence, there have been several changes of president, the Chyndyk Party is now defunct and its former leader, Kumanychbek Kadyrov, has been released from detention and formed a new party, of which the applicant is not a member.

31. Nor does the Tribunal accept the applicant’s unsubstantiated claim that she discovered she was on the ‘wanted’ list by the Kyrgyz authorities after her request to renew her Kyrgyz passport was declined in 2023; or that she was deprived of her parental rights because she was on a ‘wanted’ list. The Tribunal has had regard to the border control document the applicant submitted to the Tribunal that states that she was deprived of her parental rights. However, as discussed with the applicant at the hearing, there is nothing in the document to suggest that she was deprived of her parental rights because of an adverse political profile. Moreover, given her readiness to provide false information in order to obtain her tourist visa, the Tribunal does not attach weight to this document.

32. The Tribunal’s concerns about the applicant’s veracity are compounded by her admission to the Department and the Tribunal that the information provided in her Visitor visa application regarding her employment and reasons for visiting Australia was false. As discussed with the applicant, this raises serious concerns about her truthfulness and the general credibility of her evidence. Given that she knowingly provided false information to obtain a temporary tourist visa, the Tribunal cannot rule out that the applicant would do the same for the purpose of obtaining a permanent Protection visa.

33. In light of the above, the Tribunal is not satisfied that the applicant was ever a member of the Chyndyk party or attended a rally in Bishkek [in] August 2015. Nor is it satisfied that she taken to a police station, beaten and warned that she may be arrested and charged with criminal activities, as claimed. The Tribunal does not accept that the applicant was a person of interest to the Kyrgyz law enforcement authorities at the time she left his country.

34. On the evidence before it, the Tribunal is not satisfied that the applicant has been truthful about her claims or that any of her evidence can be relied upon. In the Tribunal’s view, the applicant fabricated her claims in order to achieve a migration outcome.

35. It follows that the Tribunal is not satisfied that if she returns to Kyrgyzstan now or in the reasonably foreseeable future, the applicant will be detained at the airport in Bishkek on arrival, arrested, unfairly tried and jailed by Kyrgyz law enforcement authorities.

36. Having considered all the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that there is a real chance that on return to Kyrgyzstan the applicant will suffer serious harm amounting to persecution for reasons of her political opinion or for any other reason.

37. For essentially the same reasons set out above, the Tribunal is also not satisfied that the applicant has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Kyrgyzstan, there is a real risk that she will suffer significant harm as defined in the Act.

    CONCLUSIONS

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

39. 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).

1. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Mara Moustafine
   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.

   …