2313727 (Refugee) - [2024] AATA 2155

2313727 (Refugee) [2024] AATA 2155 (4 March 2024)
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DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313727
COUNTRY OF REFERENCE: New Zealand

MEMBER:Jane Marquard
DATE:4 March 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 March 2024 at 5:16pm
CATCHWORDS
REFUGEE – protection visa – New Zealand – cancellation – criminal convictions – court appeals – miscommunication – hearing adjournments – applicant’s non-attendance at hearing – issues with gang violence in New Zealand – arrival in Australia as child – relatives in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 91R(1)(c), 499, 501(3A)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
SZTEQ v MIBP (2015) 229 FCR 497
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

The applicant has sought review of a decision made by a delegate of the Minister for Home Affairs on 4 September 2023 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 was born in [year] in [Town 1], New Zealand. He arrived in Australia at the age of [age] and has lived in Australia most of his life.
His mother and one brother reside in Australia, as do other relatives. His mother and brother are Australian citizens. He has a son, who was born in [year], who also resides in Australia.
The applicant travelled between Australia and New Zealand on many occasions until 2012. His last date of arrival in Australia, on a TY-444 Special Category visa, was [in] February 2012. TY-444 Special Category visas are for New Zealand citizens to enter and stay in Australia.
According to records of the Department of Home Affairs (the Department), on 20 September 2019 the applicant’s TY-444 visa was cancelled by the Department pursuant to s 501(3A) of the Act. This was on the basis that he had been sentenced to a term of 12 months imprisonment and therefore was found not to meet the character test under s 501 of the Act. He applied for revocation of the cancellation, but on 30 July 2020 the cancellation was not revoked. The applicant sought review at this Tribunal. The Tribunal (differently constituted) affirmed the decision on 26 October 2020. The applicant sought judicial review, which was successful, [in] November 2020. The Minister for Home Affairs then appealed successfully to the Full Federal Court. This decision was then appealed unsuccessfully to the High Court.
The applicant is currently in immigration detention at Villawood Detention Centre. He has been in various immigration detention centres since 1 November 2019.
The applicant applied to the Department for the protection visa (which is the subject of this review) on 1 August 2023. He applied for protection based on fear of being harmed by gangs in New Zealand. The delegate of the Department in a decision dated 4 September 2023, refused to grant the visa, finding that effective state protection was available in New Zealand. The delegate of the Department was also not satisfied that the applicant met the complementary protection criteria.
The matter is now before the Administrative Appeals Tribunal (the Tribunal) for review.
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, 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 of a person who has been granted a protection visa on refugee or complementary protection grounds (family member criterion).[7]
[5] Section 36(2)(a) of the Act.
[6] Section 36(2)(aa) of the Act.
[7] Sections 36(2)(b) and (c), the Act.
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)).
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-5LA 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.
KEY ISSUES FOR CONSIDERATION BY THE TRIBUNAL
The central issues for the Tribunal are:
· whether there is a real chance of serious harm for one of the reasons set out in the legislation were the applicant to return to New Zealand in the reasonably foreseeable future; and
· whether there is a real risk of any of the kinds of significant harm set out in the legislation.
EVIDENCE CONSIDERED AND INVITATIONS TO PROVIDE FURTHER EVIDENCE
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department 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.
There is no Country Information Report on New Zealand prepared by DFAT for protection status determination purposes. The Tribunal has taken into consideration other independent country sources about New Zealand.
There was no hearing conducted by the Department. The applicant applied for review with the Tribunal on 4 September 2023.
On 5 September 2023 the Tribunal acknowledged the application for review by email. The Tribunal also invited the applicant to provide any written material or arguments to consider as soon as possible. No information or documents were provided in response to this letter.
On 27 September 2023 the applicant was invited to appear before the Tribunal on 6 November 2023 to give evidence and present arguments in relation to the issues arising in his review. In the invitation letter, the Tribunal notified the applicant that the Tribunal had considered the material before it and was unable to make a decision in his favour on the material before it. He was invited to provide documents on which he intended to rely by 3 November 2023. No documents were provided to the Tribunal. In the invitation letter, the Tribunal notified the applicant that should he not appear at the hearing at the scheduled date and time, the Tribunal might make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
The hearing scheduled for 6 November 2023 was scheduled by means of MS Teams video as the applicant was then in Yongah Hill Immigration Detention Centre in Western Australia.
SMS reminders about the Tribunal hearing were sent to the applicant on 30 October 2024 and 3 November 2024.
The applicant appeared at the hearing on 6 November 2023 by video from Yongah Hill Immigration Detention Centre. At the commencement of the hearing, the applicant requested an adjournment. He said that the detention centre had only advised him of the hearing a few days prior. The Tribunal noted that in the covering letter to the detention centre sent with the invitation to hearing on 27 September 2023, the Tribunal had requested immediate hand delivery of the invitation. A copy of the hearing invitation letter had also been sent to the applicant’s personal email address. The applicant had also been sent an SMS reminder of the hearing on 30 October 2024, which was a week prior to the hearing.
The applicant also told the Tribunal at the hearing on 6 November 2023 that he had tried to get legal advice and had spoken to a lawyer who said they needed more time. Although the Tribunal was not convinced that the applicant had only been advised of the hearing three days prior as claimed (given the notifications set out above), he was granted an adjournment for ‘at least three weeks’ as requested in order to get legal representation. A new hearing was scheduled for 4 December 2023.
On 27 November 2023 an SMS reminder of the Tribunal hearing on 4 December 2023 was sent to the applicant’s mobile telephone.
The new hearing was scheduled for 4 December 2023 at 12pm. At the start of the scheduled hearing, a detention centre officer told the Tribunal that he was trying to locate the applicant. Half an hour after the time scheduled for the hearing, the applicant had not appeared. Detention centre staff advised the Tribunal that the applicant had declined the invitation to appear at the Tribunal hearing. According to the detention centre staff member, the applicant said that staff had ‘chased him up twice”. The hearing did not proceed after the Tribunal was notified that the applicant did not wish to attend. On 6 December 2023 the applicant requested a further hearing. A Status Resolution Officer from the Department said in an email to the Tribunal that the applicant did not know that a hearing was scheduled for him on 4 December 2023. The applicant told the Status Resolution Officer that he was woken at around 9.30am and was not advised of the reason for him being called to the interview room.
The Tribunal notes that the invitation to the hearing on 4 December 2023 had been sent to Yongah Hill Detention Centre on 6 November 2023. The detention centre confirmed receipt and notified the Tribunal that the email had been put in the internal mail and the applicant would be told about the hearing on 7 November 2023. The centre then notified the Tribunal that the invitation had been provided to the applicant. The invitation was also emailed to the applicant.
On 21 November 2023 a Tribunal officer spoke to the applicant to confirm the hearing date of 4 December 2023. The applicant said that he had not received the invitation, so it was again provided to his email. An SMS reminder was sent to his mobile telephone on 27 November 2023.
For all these reasons, the Tribunal does not accept that the applicant did not know about the Tribunal hearing on 4 December 2023, particularly given his earlier claims that he did not know about the first hearing date. However, given the emotional and practical difficulties that applicants can sometimes face in detention, the Tribunal rescheduled the hearing to a new date of 24 January 2024, as requested by the applicant. This hearing was later changed to 29 January 2024, after consultation with the applicant (email from him dated 21 January 2024 and confirmed with him in an email to his personal email dated 22 January 2024), to allow the applicant to appear in person at the Tribunal offices, as he had been moved to Villawood Detention Centre in Sydney. A hearing invitation was also sent to the detention centre, and the detention centre advised the Tribunal in writing that the invitation would be delivered immediately.
On 25 January an SMS reminder about the hearing was sent to the applicant’s mobile telephone.
On 29 January 2024 the applicant did not appear at the time of his hearing. In an email from the detention centre on 29 January 2024, an officer advised the Tribunal that the applicant had ‘declined to attend this appointment says he doesn’t want to go anymore. Staff have made several attempts to wake him this morning and encourage him to go but he has said no he is not going’.
On receipt of this email on 29 January 2024, the Tribunal called the detention centre to confirm that the applicant had been aware, when woken, that he was required to attend the Tribunal for a hearing in relation to the refusal by the Department of his protection visa application. The Serco officer at the detention centre told the Tribunal officer that the applicant was aware that his Tribunal hearing was scheduled.
The detention centre then sent the following email, ‘as per conversation the applicant was informed on several occasions that this appointment was for his immigration case at the tribunal and it is important for him to attend. After an hour of negotiating with staff I requested a manager to attend and explain to him the importance of attending and the manager advised the applicant that this was regarding his case and that the importance of attending and the applicant advised he was not interested in going and declined to attend and went back to sleep.’ The hearing on 29 January 2024 was then cancelled as the applicant had declined to attend.
On 9 February 2024 an email from an APS4 Leading Australian Border Force officer by the name of [Mr A], was sent to the Tribunal. The email stated as follows: ‘It was brought to our attention that the above named detainee had an AAT Hearing and he missed it. He was transferred over from YHIDC on a charter on the [deleted]. No one at VIDC was aware that he had an AAT Hearing. His original Hearing was facilitated by YHIDC for the [deleted] in there AVL facilities. So can we please have another date and time, either by AVL or in person if that suits the tribunal.’
On receipt of this email, the Tribunal contacted Serco to ask why this information contradicted the information provided by them to the Tribunal on 29 January 2024. The APS 4 Leading Australian Border Force officer, [Mr A], was also provided with the communications dated 29 January 2024 from Serco, and asked to comment.
On 12 February 2024 an officer from Serco told the Tribunal that there must have been some miscommunication within Australian Border Force as another Australian Border Force colleague was aware of what had taken place on the day of the hearing. On 12 February 2024 [Mr A], the APS 4 Leading Australian Border Force officer, said in an email to the Tribunal that he apologised for the confusion and had been on leave and had not realised that the Tribunal hearing had been booked. He said that he had investigated the matter. [Mr A] said that on the date of hearing the applicant had an escort booked to take him to the Tribunal hearing in person, but the applicant had declined to attend. [Mr A] said that he had been informed by Serco that there had been several attempts to wake the applicant and to inform him of his Tribunal hearing but he refused ‘again’. He said that after a Serco manager went to see him again, he refused the escort. The Tribunal accepted from this email from [Mr A] that on reflection [Mr A] no longer claimed that the detention centre and the applicant were unaware of the hearing on 29 January 2024.
The Tribunal wrote to the APS 4 Leading Australian Border Force officer, [Mr A] on 13 February 2024, to ask him about the comment in his first email, in which he said ‘can we please have another date and time, either by AVL or in person if that suits the tribunal’. The Tribunal asked [Mr A] to clarify if the applicant had requested a further hearing, noting that the Tribunal would also email the applicant to clarify this.
On 13 February 2024 the Tribunal wrote to the applicant to query if he wanted the matter determined on the papers or if he wanted another hearing. The Tribunal set out the details of the non-attendance at the hearing. The Tribunal noted that if the Tribunal did not hear from the applicant by close of business on 16 February 2024 to request a new hearing, the Tribunal would presume that the applicant wished to have the matter determined on the papers. No response was received from the applicant. On 13 February 2024 [Mr A], the APS 4 Leading Border Force Officer apologised for the confusion and said that he had asked for the new hearing in the first email without doing his research on the basis that he thought that the applicant had missed his hearing instead of refusing to attend. The Tribunal notes that there was no request from [Mr A] on behalf of the applicant for a new hearing and there was no request made by the applicant himself.
On 13 February 2024 an email was received from [Mr B], a Status Resolution Officer from the Department. He said ‘in Summary, Detainee () was recently transferred to VIDC from YHIDC on 18/12/2023. The detainee had an AAT hearing scheduled at YHIDC via video link on the 24/01/2024. During my engagement with Detainee()he advised me that due to some miscommunications between himself and Serco officers he missed the scheduled hearing on the 24/01/2024 and he was concerned about the implications for his case. I have raised this issue with ABF Detention Operations, however, I would be grateful for any information or update you could provide about this situation and whether or not a new hearing could be organised for the detainee.’

On 13 February 2024 the Tribunal corresponded with [Mr B], the Status Resolution Officer from the Department. The Tribunal provided the information provided by [Mr A] and Serco to [Mr B] and advised [Mr B] that an email had been sent on 13 February 2024 to the applicant asking the applicant if he wished to apply for a new hearing. He was also asked what miscommunication he was referring to in his email.
On 14 February 2024 [Mr B] emailed the Tribunal as follows: ‘Thank you for the update, I originally () raised this issue with ABF Detention Operations to explore the claims made by Detainee regarding the incident to determine whether or not he actually had been impacted. For context, I was recently re-allocated the case and was conducting a case review on 08/02/2024 when Detainee () raised the concern that he believed he had been disadvantaged and a Serco Officer had lied about him being asleep. The miscommunication I am referring to was the detainee’s claims that he did approach a Serco Officer who told him that he was not on the Schedule for that day and sent him away. I note that the details about the interaction between the Detainee and [name deleted] were not provided to me until late yesterday afternoon (13/02/2024).I was seeking further information about the situation and an update so that I can provide consistent messaging in my future engagements with the detainee. I appreciate your help and the new information provided and I will follow up with the Detainee to discuss the information provided by the AAT. If you need anything further from me please let me know’.
On 20 February 2024 as no further correspondence had been received, the Tribunal wrote to [Mr B] to notify him that he had said he would follow up to discuss the information provided by the Tribunal with the applicant. The Tribunal noted that it had not heard anything from the applicant despite advising him that as he had refused to attend his hearing, if he did not request a further hearing by 16 February 2024 the Tribunal would make a decision on the papers. The Tribunal also wrote to the applicant on 20 February 2024 noting that as he had not requested a further hearing by 16 February 2024 the Tribunal would proceed to make a decision on the papers.
No further correspondence was received from the Departmental officers at the detention centre or from the applicant at the time of this decision, which is 17 days after the deadline given for a request for a further hearing. The Tribunal is satisfied therefore that the applicant does not wish to apply for a new hearing and has consented to the matter being determined on the papers.
In reaching this conclusion, the Tribunal notes that in the hearing invitation sent to the applicant, the applicant was notified that the Tribunal had considered the material before it and was unable to make a decision in his favour on the material before it and that he had been invited to a hearing in order to present evidence and make arguments in relation to the issues arising in the review. When the applicant first appeared before the Tribunal, the Tribunal notified him that the purpose of the hearing was to hear evidence in relation to the review and provided him with time to seek legal advice.
The Tribunal notes further that the applicant was advised in the hearing invitation letter that should he not appear at the hearing at the scheduled date and time for his hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal. Notwithstanding this information about the need for a hearing, the applicant has declined to attend hearings arranged for him.
Furthermore, there was no information presented to the Tribunal from the applicant or suggestions made by the detention centre, that there were particular mental health or other issues which had led to his non-appearance at his hearings. The Tribunal acknowledges that applicants in detention may be distressed at their circumstances and feel sad and upset about being separated from their families or because of loss of liberty. For these reasons, the Tribunal made a number of accommodations for the applicant, including adjourning the hearing on a number of occasions although not accepting the applicant’s claims that he had not been told about the hearings.
The Tribunal also sent SMS reminders to the applicant about the hearings and made sure that invitations were emailed to him as well as being provided to the detention centres. The Tribunal checked with the detention centre that the applicant had received the last hearing invitation. A Tribunal officer contacted the detention centre to make sure that the applicant was fully aware that his resumed hearing was scheduled. According to the detention centre officer, it was explained to the applicant on a number of occasions, including by a manager, that it was important he attend his Tribunal hearing, and he said that he was not interested and declined to attend.
Since then, the applicant spoke to two different officers at the detention centre suggesting he was not properly told about the hearing, despite the evidence from the detention centre that he was properly advised, and also noting that the Tribunal sent communications to his personal email and SMS. Those officers have since told the Tribunal that after investigation within the centre they are satisfied that he was notified. Notwithstanding this, the Tribunal provided the applicant with an opportunity to request a further hearing even though he had been given this opportunity previously. The Tribunal also notified departmental officers at the detention centre that they could discuss a request for a further hearing with him. The applicant was asked to make such a request to the Tribunal by 16 February 2024 but as at the date of this decision, no request was made and no further communication was received from him.
Taking all these factors into consideration, the Tribunal has decided to make a decision on the evidence before it[8], as the applicant has declined to attend the resumed hearing as offered to him and confirmed to officers at the detention centre that he did not wish to attend. Furthermore, the Tribunal notes that the applicant has not requested that the hearing be re-scheduled despite being given an opportunity to do so.
[8] See CRE21 v MICMA [2023] FedCFamC2G 352.
In making the findings in relation to the applicant’s claims set out below, the Tribunal has considered evidence in the application made to the Department for the protection visa, and country sources about New Zealand (as referred to earlier). Information about the applicant’s immigration history, including the cancellation decision made by the Tribunal differently constituted, were before the Tribunal.
The cancellation was referred to by the applicant in his application for review by this Tribunal, and therefore the applicant knew that it was a fact of which the Tribunal would be aware. The issue of cancellation was relevant to the issue of why the applicant was in detention and was applying for the protection visa even though he had lived in Australia most of his life. The cancellation decision could also have been relevant in another sense had it referred to gang violence in New Zealand, which it did not. This material was before the Tribunal in order that the Tribunal could discharge its decision-making task.[9] The criminal convictions referred to in the cancellation decision have not influenced the Tribunal in making its findings set out below. Tribunal Members are independent decision-makers and it is common for information about criminal matters to be before Tribunal members and for Tribunal members to disregard such information in making decisions. The criminal convictions are not relevant to the question of whether the applicant faces a real chance of serious harm or a real risk of significant harm and the Tribunal has not taken the information into account in making its findings on these criteria. The Tribunal has disregarded the information in the cancellation decision as not having a sufficient basis for regarding it as relevant, and furthermore it was not advanced as relevant.[10]
[9] See MBJY v MICMSMA (2021) 284 FCR 152.
[10] MBJY v MICMSMA (2021) 284 FCR 152.
The findings below incorporate reference to information that the Tribunal has found to be material to the determination of the issues in the case.[11]
FINDINGS AND REASONS
[11] The Tribunal notes that it is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.
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 the country ‘of nationality’. 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 has a New Zealand passport, issued in [2023]. The Tribunal is satisfied based on his passport and testimony that the applicant is a national of New Zealand, and that New Zealand is the receiving country for the purposes of the legislation.
Personal particulars and background
The Tribunal accepts the personal particulars and background details provided by the applicant as they are uncontentious and there is no reason to doubt them.
The applicant, who is now [age] years old, was born in New Zealand and travelled to Australia at the age of [age]. His parents came from [Town 1]. He travelled with them back to New Zealand on a number of occasions but has resided in Australia consistently from 2012.
A number of his relatives live in Australia including his mother, brother, son, step grandfather and grandmother, [aunts] and uncles, four nieces and nephews and [cousins]. He has been unemployed for some time.
The refugee criterion – does the applicant have a well-founded fear of persecution for one of the reasons set out in the legislation?
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.[12]
[12] Section 5H(1) of the Act.
The next issue for consideration by the Tribunal is whether the applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Is there a real chance of serious harm if the applicant were to return to New Zealand in the reasonably foreseeable future?
For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act, provides an objective element to that concept,[13] – not only must a person fear persecution, there must also be a prospect of that fear being realised.
[13] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <>
The applicant claimed as follows (taken directly from his application form):
‘my family had issues with gangs in new zealand that was the reason they move to australia. now if i go back to new zealand i have concerns that i might be killed in gang violance. Gang membership in New Zealand has hit its highest level ever recorded, with more than 8300 members across the country.
According to the multi-agency national gang list, which is maintained by the Gang Harm Insights Centre (GHIC), members grew by 338 between August 31 and October 31 - a rise of nearly six new gang members per day. Citing the data, the National Party's police spokesman Mark Mitchell said there has been a 56 per cent increase in membership since 2017. The gang list total is now at 8357. Mitchell blamed what he described as the Government's "soft on crime" approach to policing, which he claims has "failed to keep gangs under control, and tougher measures are needed to get on top of the problem."
But Police Minister Chris Hipkins said the numbers were "misleading". He said the national gang list was "never intended to be a definitive measure of the number of the people involved in gangs in New Zealand".
i will be killed in gang violence if i go back to new zealand. Worsening gun violence linked to gang turf wars, illicit drugs and the insidious cancer of organised crime has left more than 350 people with firearms injuries across Auckland in five years. More than half of the wounded were treated at Middlemore Hospital as violence in South Auckland spilled over into bloodshed, leaving numerous people dead and scores of others fighting for their lives. Auckland Mayor Phil Goff has serious concerns about the growing use of firearms. He has written to the Police Minister and will meet Deputy Police Commissioner John Tims next week to discuss how to tackle the spate of shootings and toxic impact of gangs.
"There is no single solution, but every available lever needs to be pulled to stop worsening gang violence and misuse of firearms in criminal and gang activity. "A gang expert says police may need to monitor gangs extremely heavily - or get them in a room together - in a bid to quash any tit for- tat violence that may be brewing.
There is growing concern about what appears to be a rise in gang-linked violence, particularly shootings in Auckland. There have been a number of shootings of homes, shops and people in recent months in Auckland. Last Wednesday a man was critically injured in Glen Eden in broad daylight; five Comancheros members have since been charged with wounding with intent to cause grievous bodily harm.
i cant live anywhere or relocate because there are gangs everwhere in the country. The number of reported gangsters in New Zealand has climbed 10% in under year, according to police data. An April report from the Gang Harm Insights Centre said there are 8875 gang members spread across 33 gangs on police's National Gang List (NGL).
That figure is up 856, or 10.6%, from August 2022, with 400 new members entering the list in 2023 alone. National said the increase is evidence of a "permissive environment" while Labour is pointing at legislation they've passed to target those members.’
The Tribunal has not had the opportunity to clarify and seek further detail on the applicant’s claims, and to consider oral or written submissions, although invitations for both were provided. As a result, the Tribunal is unable to be satisfied on the evidence before it that the applicant’s family had issues with gangs in New Zealand and this was the reason they moved to Australia, as claimed by him.
If the applicant had appeared at the Tribunal hearing the Tribunal would have asked him to provide further information about this claim, including where these issues took place, what issues his family had with gangs in New Zealand, which family members had these issues, what gangs these were and where they were located and why they returned to New Zealand on a number of occasions if they had issues with gangs. As the applicant chose not to appear at the Tribunal hearing the Tribunal was unable to question him on these matters. He also did not provide written details although he was invited to do so. Without more detailed information, the Tribunal is unable to be satisfied that the applicant’s family left New Zealand because they had issues with gangs.
The Tribunal is also unable to be satisfied that if the applicant returns to New Zealand in the reasonably foreseeable future that he would be killed or otherwise seriously harmed by gangs, given that the Tribunal is not satisfied that his family had issues with gangs, the applicant has lived in Australia all his life, and the Tribunal does not have other evidence about why the applicant would be targeted. Had the applicant appeared at the Tribunal hearing, the Tribunal would have questioned him about why he believes that he will be targeted for gang violence, or why he believes that he would be killed by gangs. The Tribunal would have queried where he would live, which particular gangs he feared, why he fears this harm, and where gangs he fears are located. Without this clarification and detail, the Tribunal is unable to be satisfied that the applicant would be killed or seriously harmed by gangs.
The Tribunal would also have asked the applicant questions at hearing about whether the persecution he feared would be systematic and discriminatory rather than random. Persecution must involve systematic and discriminatory conduct.[14] The Full Federal Court observed in SZTEQ v MIBP (2015) 229 FCR 497 that ‘systematic’ is used in s 91R(1)(c) in the same way that ‘discriminatory’ is used – to direct the decision-maker’s attention to the motivation of the alleged persecutor. It conveys deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental.
[14] Section 5J(4) of the Act.
It is well-established that ‘persecution’ within the meaning of the Convention involves a discriminatory element. Courts have consistently held that the discriminatory element of persecution involves an element of motivation on the part of the persecutor and it should be deliberate. The Tribunal is not satisfied that generalised crime referred to by the applicant in his application, including worsening gun violence, would be deliberately targeted at him or that offenders would be motivated to harm the applicant specifically. The Tribunal is not satisfied therefore that there would be systematic and discriminatory conduct.
The applicant referred to information from the Gang Harm Insights Centre to support his claims. This information suggests that gang membership and crime has increased in New Zealand, with increased use of firearms, and that the police are soft on crime. Had the applicant appeared at the Tribunal hearing, the Tribunal would have discussed this information with the applicant, and in particular why he believed that this information supported his claim that he would be seriously harmed by gangs. The Tribunal would also have discussed generally available country information from other country sources. Similar information was referred to in the Department decision provided by the applicant to the Tribunal. The information suggests that New Zealand is one of the safest countries in the world.[15] While the applicant’s claim that gangs are increasing may be true (there are a number of articles which suggest that gangs are recruiting higher numbers than the army. The Gang Intelligence Centre suggested membership numbers had doubled in the five years, rising from 4000 members to 8000 in 2021[16] and the Economist stated that these are the highest per capita gang membership in world[17] ) New Zealand is still a safe place to live.[18] Had the applicant appeared at the Tribunal hearing, the Tribunal would have put to the applicant that figures about gang violence are low, compared to a population of 5 million, and queried why he believed that he would be targeted.
[15] Global Peace Index 2023, <GPI-2023-Web.pdf (visionofhumanity.org)>; World Population Review, <Violent Crime Rates by Country 2023 (worldpopulationreview.com)>; Global Organised Crime Index, ‘Profile New Zealand’, 2023.
[16] The Economist, 2018 quoted in The Guardian, aa August 2022, < Some New Zealand politicians want to crack down on gangs. That’s no way to solve the problem | Morgan Godfery | The Guardian>.
[17] The Economist, 2018 quoted in The Guardian, aa August 2022, < Some New Zealand politicians want to crack down on gangs. That’s no way to solve the problem | Morgan Godfery | The Guardian>.
[18] Global Peace Index 2023, <GPI-2023-Web.pdf (visionofhumanity.org)>; World Population Review, <Violent Crime Rates by Country 2023 (worldpopulationreview.com)>; Global Organised Crime Index, ‘Profile New Zealand’, 2023.

Sources suggest that there are low rates of crime in New Zealand and effective protection is available. The Global Peace Index finds that New Zealand is the fourth most peaceful place in the world.[19] It is also ranked as one of the countries in the world with the least crime, with a rate of 0.74 homicides per 100 000 people.[20] The Global Organised Crime Index states that it is safer than Australia and ranked 149 out of 193 countries. It is stated that ‘New Zealand is considered one of the most stable countries in the world, with a high level of respect for political rights and civil liberties. The legal framework against organised crime is robust.’[21]
[19] Global Peace Index 2023, <GPI-2023-Web.pdf (visionofhumanity.org)>.
[20] World Population Review, <Violent Crime Rates by Country 2023 (worldpopulationreview.com)>.
[21] Global Organised Crime Index, ‘Profile New Zealand’, 2023.
The OSAC Report on New Zealand states that:
‘more recently in the New Zealand media much attention has been paid to increasing levels of property and violent crime. Police sources are cautious to draw conclusions, however most if not all admit that reports of crimes are on the rise. More and more crimes involving firearms are being reported and local police have enacted new laws to help combat gang violence. Crime is less prevalent in New Zealand than in major U.S. cities, though New Zealand is experiencing an increase in some types of criminal offenses, especially in Auckland and Wellington. Most of the crime involves theft, including from motor vehicles and hostels. The Global Organized Crime Index is a tool designed to measure levels of organized crime in a given country and assess its resilience to organized criminal activity. The most recent index ranks New Zealand 172 out of 193 worldwide for criminality, with 1 being the worst possible ranking; and 3 out of 193 worldwide for resilience, with 1 being the best possible ranking. Most of the country’s population lives in the larger urban areas of Auckland, Christchurch, and Wellington, which lead the country in criminal activity and associated arrests, though overall crime rates are low. In major urban areas, the New Zealand Police have more robust resources and manpower to disrupt street crimes, such as thefts from vehicles.[22]
[22] OSAC, New Zealand Country Security Report (osac.gov).
New Zealand is a thriving first world democracy with a robust criminal justice system. There is criminal legislation in place, such as the Crimes Act 1961 (New Zealand), which prescribes particular crimes and punishments. This includes s98A which allows up to 10 years’ imprisonment for participating in an organised criminal group and other provisions preventing joint criminal enterprise (s66(2) for example). Crime is enforced by a police force with more than 370 police stations, a staff of 12 000 and operations on land, sea and air.[23] According to sources, the police force trains to Western standards and is actively involved in crime prevention and response. The police force has specialised units to deal with armed offenders.[24] The same report noted that although the police force was less resourced than its equivalent in the USA, the police typically responded to major incidents with appropriate personnel. It noted also that they were increasing staff by 1800.[25]
[23] United States Department of State, ‘Overseas Security Advisory Council Report for New Zealand 2021’, 23 September 2021.
[24] United States Department of State, ‘Overseas Security Advisory Council Report for New Zealand 2021’, 23 September 2021.
[25] United States Department of State, ‘Overseas Security Advisory Council Report for New Zealand 2021’, 23 September 2021.
New Zealand has an independent judiciary, and the government respects this independence. The law provides for penalties for corruption.[26] Sources suggest that the New Zealand police actively arrest those involved with gangs[27] as referred to by the delegate in the Department decision. The police had announced in 2023 that a nationwide operation against gang activity had resulted in more than 50 000 charges brought over a year. A police statement quoted said police had run ‘large and visible operations keeping the movement and actions of gang members in check. We have deployed staff across the country and also had checkpoints in operation.’ [28] Further, the new coalition government which was elected in 2023 has made a campaign promise to crack down on gangs in a new ‘get tough’ policy.[29] Some of the policies to be introduced include extra police powers to search for guns, to make gang membership an aggravating feature of sentencing, to ban gang patches in public, to stop public gang meetings and prevention of communication between gang members.[30]
[26] United States Department of State, ‘Country Reports on Human Rights Practices for 2021 - New Zealand', 12 April 2022.
[27] See for example, Lucy Cormack, Sydney Morning Herald,’ Buckets of KFC and an unwitting international air crew: How police operation uncovered alleged drug smuggling ring',
23 December 2019.
[28] OCCRP, ‘New Zealand files 50 000 charges in national crackdown on drugs’, 7 September 2023.
[29] The Conversation, 19 December 2023, <NZ’s new government is getting tough on gangs – but all the necessary laws already exist (theconversation.com)>.
[30] The Conversation, 19 December 2023, <NZ’s new government is getting tough on gangs – but all the necessary laws already exist (theconversation.com)>.
If the applicant had appeared at the Tribunal hearing, the Tribunal would have asked the applicant why he believed that he would be targeted by gangs for serious harm in light of the sources referred to above which indicate that the police are active in trying to prevent gang activity, as already highlighted in the decision of the Department.
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. The Tribunal generally takes a facilitative approach where there are unrepresented applicants. In this case, the Tribunal adjourned the hearing on the first occasion to allow the applicant to obtain legal representation, as requested. The Tribunal has invited the applicant to provide written submissions or documents on a number of occasions and also provided him with the opportunity to attend a hearing on a number of occasions, following up with SMS reminders. The Tribunal also contacted Departmental staff at the detention centre to discuss the process with the applicant. Despite these opportunities, the applicant has not attended a hearing or provided sufficient evidence to establish his claims and confirmed to detention centre staff that he declined the opportunity to attend a hearing.
In sum, for the reasons set out above the Tribunal is unable to be satisfied that the applicant’s family had issues with gangs in New Zealand and left the country for this reason. The Tribunal also does not have information on which gangs are feared if the applicant returns to New Zealand, why they would target the applicant, how they would target the applicant and where these gangs are located. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J of the Act, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[31]
[31] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p 171.
Without details and clarification on the claims, the Tribunal is not satisfied that there is a real chance (in the sense of a substantial or non-remote chance[32]) of serious harm from gangs in New Zealand were the applicant to return to New Zealand in the reasonably foreseeable future. The Tribunal is also not satisfied that there is a real chance of serious harm due to generalised crime, given the figures set out earlier about crime in New Zealand, or that such harm would amount to persecution given that it would not be systematic and discriminatory.
[32] Chan v MIEA (1989) 169 CLR 379.
Findings on refugee criteria
The Tribunal is not satisfied for the reasons set out above that the applicant has a well-founded fear of persecution for any of the reasons set out in the legislation.
Does the applicant meet the complementary protection criterion?
If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB [2013] FCAFC 33. The Tribunal is not able to be satisfied on the evidence provided that there is a real chance that the applicant would be seriously harmed if he returned to New Zealand. For the same reasons, on the basis of the decision in MIAC v SZQRB [2013] FCAFC 33, the Tribunal is not satisfied that there is a real risk of any of the kinds of significant harm set out in the legislation.
The Tribunal is not satisfied therefore that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to New Zealand there is a real risk of significant harm.
Member of the same family unit of a person who has been granted a protection visa on refugee or complementary protection grounds
There is no suggestion that the applicant is owed protection as the member of the same family unit of a person who has been granted a protection visa.
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 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 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
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.
…