2303182 (Refugee) - [2023] AATA 2421

2303182 (Refugee) [2023] AATA 2421 (3 May 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Kenan Bircan (MARN: 1463685)
CASE NUMBER: 2303182

COUNTRY OF REFERENCE: Türkiye
MEMBER:Jane Marquard
DATE:3 May 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 May 2023 at 10:58am
CATCHWORDS
REFUGEE – protection visa – Turkey – race – Kurdish ethnicity – political opinion – religion – genuine and continuing relationship – member of the family unit – relationship ceased – decision under review affirmed
LEGISLATION
Domestic and Family Violence Protection Act 2012, Qld, s 105
Migration Act 1958, ss 5(1), 5AAA, 5F, 5H, 5J – 5LA, 36, 65, 425, 499
Migration Regulations 1994, Schedule 2, cl 866.611; rr 1.12, 1.15
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chand v MIMA [1997] FCA 530
Goraya v Minister for Immigration [2018] FCCA 2017
Harchandai v MIBP [2017] FCA 1395
Malhi v MIBP [2017] FCCA 119
MIBP v Angkawijaya [2016] FCAFC 5
Singh v MIEA [1996] FCA 1429
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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 March 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND TO THE REVIEW
The applicant is [an age]-year-old man from Istanbul, Türkiye.
He first arrived in Australia [in] February 2005 on a [Temporary] visa. He arrived in Australia with his wife and [children]. His wife and children have also applied for protection visas and their applications have been considered separately.
The applicant applied for the visa on 22 August 2017. He applied for protection as a member of the same family unit as his wife, who claimed that if she returned to Türkiye she would be persecuted for reasons of her Kurdish ethnicity, political views and religion.
The delegate of the Department of Home Affairs (the Department) refused to grant the visas for the applicant and his family members on 23 March 2018 on the basis that he was not satisfied that there was a real chance of serious harm or a real risk of significant harm to the applicant’s wife.
This is a review of that decision by the Administrative Appeals Tribunal.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The applicant has applied for a Permanent Protection (Class XA) (Subclass 866) visa.[1] Such visas are issued under the general power to issue visas conferred on the Minister, or his delegates, including the Department, by the operation of s 65 of the Act. If granted, a Permanent Protection (Class XA) (Subclass 866) visa permits a non-citizen to remain in Australia indefinitely.
[1] See Migration Regulations 1994 (Cth), Sch 1, cl 1401; Sch 2, cls 866.1 to 866.611.
Australia acceded to the 1951 Convention relating to the Status of Refugees[2] in 1954 (the Convention) and to the 1967 Protocol relating to the Status of Refugees[3] in 1973, thereby undertaking to apply their substantive provisions. For protection visa applications made after 16 December 2014, the refugee definitions in the Act apply, which draw on concepts from the Convention definitions.[4]
[2] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Convention’).
[3] Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).
[4] The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Convention and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’.
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). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must establish that they:
a.are a refugee (the refugee criterion);[5] or
b.qualify for complementary protection (the complementary protection criterion)[6] or
c.are a member of the same family unit as a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]
[5] Migration Act 1994 (Cth), s 36(2)(a).
[6] Migration Act 1994 (Cth), s 36(2)(aa).
[7] Migration Act 1994 (Cth), s 36(2)(b), (c).
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail him or herself of the protection of their country of nationality: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J (2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)).
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are 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) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
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 of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510).
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).
evidence
The Tribunal has taken into consideration evidence provided to the Department and evidence provided to the Tribunal by the applicant’s family in their application for review.
On 12 April 2023 the Tribunal wrote to the applicant to invite him to comment on or respond to information which the Tribunal considered would, subject to his comments or response, be the reason or a part of the reason, for affirming the decision under review. The applicant was invited to comment on or respond by 26 April 2023 or request an extension by that date. The applicant was advised that if the Tribunal did not receive his comments or response by that date, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information. He was advised that he would also lose his entitlement to appear before the Tribunal to give evidence and present arguments.
The letter was sent to the last notified address provided by the applicant (his representative’s address). His family members had also provided another address for the applicant. A courtesy copy of the letter dated 12 April 2023 was also sent to this address.
In the letter dated 12 April 2023, the Tribunal also noted that in previous correspondence the applicant had been notified that if he changed his address he should immediately notify the Tribunal. He was invited to provide new contact details.
No response was received by the Tribunal as at the date of this decision. The Tribunal has therefore decided to determine the matter without taking further action to obtain his views, pursuant to s 425(3) of the Act. He has made no effort to contact the Tribunal or to advise of any new address.
FINDINGS
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being a refugee if they are outside their country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
For the purposes of the complementary protection criterion, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant provided a copy of his Turkish passport to the Department. The Tribunal is satisfied that he is a citizen of Türkiye and that Türkiye is the receiving country for the purposes of the legislation.
DOES THE APPLICANT MEET THE REFUGEE OR COMPLEMENTARY PROTECTION CRITERIA?
The applicant claimed protection on the basis of being a member of the same family unit as his wife. He did not claim that he met the refugee or complementary protection criteria or provide evidence of doing so.
The Tribunal is not satisfied therefore that the applicant meets the refugee or complementary criteria set out in the Act (ss 36 (2)(a) and 36(2)(aa)).
IS THE APPLICANT A MEMBER OF THE SAME FAMILY UNIT AS HIS WIFE?
The applicant claimed protection on the basis of being a member of the same family unit as his wife, who in turn claimed to meet the refugee criteria in the Act. The legislation permits members of the same family unit as those granted protection to be granted visas. The definition of ‘member of the same family unit’ in reg 1.12 of the Regulations includes the term ‘spouse’. The Tribunal has considered whether the applicant is a ‘spouse’ of his wife.
Section 5(1) of the Act provides that ‘spouse’ has the meaning given in s 5F of the Act – that a person is the ‘spouse’ of another where those two people are in a ‘married relationship’. Persons are in a married relationship if they are married under a valid marriage, have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing and they live together or do not live separately and apart on a permanent basis.[8] The definition of spouse is supplemented by reg 1.15A which outlines factors that a decision-maker may consider when determining if the definition is met.
[8] Section 5F of the Act.
In the letter to the applicant dated 12 April 2023, the Tribunal wrote as follows:
In conducting the review, we are required by the Act to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information.
The particulars of the information are:
Information in a Queensland Police Service Police Protection Notice issued under section 105 of the Domestic and Family Violence Protection Act 2012, Qld, dated [in] March 2022 which prohibits you from contacting or approaching (wife).
This information is relevant to the review for the following reasons.
In your application dated 22 August 2017 you applied for a protection visa as a member of the same family unit of your wife. The Act permits members of the same family unit as those granted protection to be granted visas. The Protection Notice indicates that you no longer reside with your wife as a spouse, and you are prohibited from contacting or approaching her. The Tribunal is therefore not satisfied, subject to any comments or response that you make, that you are a member of the same family unit of your wife. Reasons for this are as follows.
The definition of ‘member of the same family unit’ in reg 1.12 of the Migration Regulations 1994, Cth includes the term ‘spouse’. The Tribunal is not satisfied that you are a ‘spouse’ given that you and your wife have separated. Section 5(1) of the Act provides that ‘spouse’ has the meaning given in s 5F, which states that a person is the ‘spouse’ of another where those two people are in a ‘married relationship’. Persons are in a married relationship if they are married under a valid marriage, have a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship is genuine and continuing and they live together or do not live separately and apart on a permanent basis. The definition of spouse is supplemented by reg 1.15A which outlines factors that a decision-maker may consider when determining if the definition is met.
The Tribunal is not satisfied that you and your wife are in a mutual commitment to a shared life as a married couple to the exclusion of all others. You are not currently living together and have separated. You are not permitted to contact or approach her.
The Tribunal is also not satisfied, for the same reasons, that the relationship is genuine and continuing. The Tribunal is not satisfied on the basis of the factors set out above that you satisfy s 5F of the Act and are therefore a member of the same family unit of your wife.
If we rely on this information in making our decision, this may be a reason or part of the reason for affirming the decision under review, subject to any comments or response you may have. You are invited to give comments on or respond to the above information in writing.
The applicant was asked to provide a response to this letter by 26 April 2023. As at the date of this decision, no response has been received by the Tribunal.
The Tribunal is not satisfied that the applicant and his wife are spouses as defined in s 5F of the Act, for the following reasons.
Firstly, the Tribunal is not satisfied that the applicant and his wife have made a mutual commitment to a shared life as a married couple to the exclusion of all others. They are not currently living together and do not have a mutual commitment to a shared life. The Information in a Queensland Police Service Police Protection Notice issued under section 105 of the Domestic and Family Violence Protection Act 2012, Qld, dated [in] March 2022 prohibits the applicant from contacting or approaching his wife. An assessment of whether the claimed relationship involves a ‘mutual commitment to a shared life’ requires an assessment of the subjective intentions of the parties.[9] The applicant’s wife has indicated that she has separated from him and he cannot contact her as demonstrated by the Protection Notice, so her intention is to no longer have a commitment to a shared life with the applicant. The applicant was invited to comment on these issues but did not do so.
[9] In Singh v MIEA [1996] FCA 1429 at [13].
Secondly, the Tribunal is also not satisfied that the relationship is genuine and continuing and the couple live together. Whether the relationship between the parties is a genuine and continuing relationship is a question of fact to be determined by the Tribunal as a matter of inference and conclusion to be derived from all relevant evidence.[10] Romantic involvement does not necessarily need to exist for a relationship to be genuine and for the parties to have the relevant commitment, nor is an absence of love and affection determinative.[11] ‘Genuine’ refers to a relationship which is, at the relevant time, neither a sham nor a false relationship.[12] The Tribunal is not satisfied that this is the case. Although the couple have [number] children together, they do not share parental responsibilities and the information in a Queensland Police Service Police Protection Notice issued under section 105 of the Domestic and Family Violence Protection Act 2012, Qld, dated [in] March 2022 prohibits the applicant from contacting or approaching his wife. The Tribunal is not satisfied that there is a genuine relationship.
[10] Chand v MIMA [1997] FCA 530.
[11] MIBP v Angkawijaya [2016] FCAFC 5 at [3]; Harchandai v MIBP [2017] FCA 1395 at [29]. See also Goraya v Minister for Immigration [2018] FCCA 2017 in which Judge McNab distinguished Angkawijaya [2016] FCAFC 5 and found the Tribunal’s reference to an apparent absence of romantic love did not form the basis of the decision on consideration of the reasons as a whole at [32]. Accordingly, while romance/love/affection in the relationship is a consideration, a lack of it alone is not determinative.
[12] Malhi v MIBP [2017] FCCA 119 at [37].
For a relationship to be ‘continuing’, parties need not show that their relationship will last into the long term or endure for a period beyond that which is reasonably foreseeable.[13] The applicant’s wife confirmed that they are no longer together, and the Protection Notice indicates that the applicant cannot contact his wife. The Tribunal is not satisfied that there is a continuing relationship.
[13] Malhi v MIBP [2017] FCCA 119 at [38].
The Tribunal is not satisfied on the basis of the factors set out above that the applicant satisfies s 5F of the Act. The Tribunal is not satisfied therefore that the applicant is a member of the same family unit as his wife, a person who holds a protection visa of the same class as that applied for by the applicant. The Tribunal is not satisfied therefore that the applicant meets s 36(2)(b) or (c) of the Act.
CONCLUDING PARAGRAPHS
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) or (aa) of the Act.
The Tribunal is also not satisfied that the applicant is the spouse of his wife, and therefore a member of the same family unit as his wife for the purposes of s 36(2)(b) or (c) of the Act. The Tribunal is not satisfied that the applicant meets s 36 (2) of the Act.
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Jane Marquard
Member

Attachment A - 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.
…