2314467 (Refugee)

[2023] AATA 4397

2314467 (Refugee) [2023] AATA 4397 (13 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314467

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Christine Cody

DATE:13 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 October 2023 at 6:31pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – family land dispute – non-appearance before the Tribunal – lack of detail and information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 426, 441A
Migration Regulations 1994 (Cth), Schedule 2

CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Vanuatu, applied for the visa on 17 March 2023. The delegate refused to grant the visa on the basis that, having regard to country information, he is not a refugee or entitled to complementary protection. 

3. Relevant law is set out in Annexure A.

   The application before the Department

   Protection visa application form and passport

4. The applicant lodged a protection visa application form on 17 March 2023 and provided a copy of the biopage of his passport issued [in] 2019, valid [until] 2024.

   Protection visa application forms

5. According to the protection visa application forms, the applicant was born in [Location 1], [Province 1], Vanuatu, in [year]. His ethnicity is Pacific Islander, and his religion is Christian. He has never been married. He speaks, reads, and writes in both Bislama and English.

6. When he was young the applicant resided in [Location 1]. He then moved to [Location 2], [City 1] where he resided [until] May 2021 when he left Vanuatu for Australia. His father supported them. He attended school in [City 1].  He states he was unemployed until 2015 when he started his own business as a [Occupation 1] in [Location 2]. He continued working in this business until he came to Australia.

7. The applicant arrived in Melbourne [in] May 2021, as the holder of an “international relations visa” (Temporary Work) (subclass 403) visa.  

8. In response to the question of his family members overseas he only listed his father [Mr A] whom he states is deceased. He states that his younger brother [Mr B] travelled with the applicant to Australia or resides in Australia.

9. His protection visa claims are set out below:

   The country from which this applicant is seeking protection and cannot return to?
   Vanuatu.

   Provide reasons why this applicant left that country:

   I left Vanuatu because my father and us have always struggled since my mother left us back in 1993/1994 because she was always fearing the family land disputes and how she can never measure up to the family's ranking of inheritances and so that put her safety at risk. My father took care of us, but it meant we had to stay away from our home island [Location 1]. We spent most of our lives in [City 1] until we all started growing up and realising that the family politics in terms of land disputes was putting our safety at risk.

   Did the applicant experience harm in that country?
   Yes. I fled to Australia due to being physically battered by my uncle's son over talks about land inheritance. That followed by threats, so I spoke to my father about travelling out to help support him as he did his best to relocate us to [City 1]. He agreed, but has since passed away, so there is nothing left for us to go back to. We talk to our mother but there is nothing she can do to help us.

   Did this applicant seek help within the country after the harm?
   No. When it comes to land issue, the chiefs are to deal with the matters, but are always in favour of the first-born son of the family and his male children. We knew we stood no chance.

   Did this applicant move, or try to move, to another part of that country?
   Yes. My father fled with us to [City 1] where we spent most of our lives.

   Explain what the applicant thinks will happen to them if they return to that country:
   Since my father has now passed away, we are considered to be stateless in our own community, so going back home would mean I will have to carry the weight of constantly being on guard for my own safety. I strongly believe that I will be physically assaulted again.

   Does this applicant think they will be harmed or mistreated if they return to that country?
   Yes. I believe that I will be treated as an outcast by my uncle and his children, for they have the rights to everything (land inheritance) and I fear that I will be physically harmed again.

   Does this applicant think the authorities of that county can and will protect this applicant if they go back?
   No. Authorities don’t have as much right to handle land disputes, so these often get overlooked.

   Does this applicant think they would be able to relocate within that country to an area where they would not be harmed?
   No. My father has tried to relocate us for our own safety, but even that didn’t stop my family from attacking us.

   The delegate’s decision record[1]

   [1] A copy was provided to the Tribunal by the applicant

10. The delegate refused to grant the visa on the basis that the written claims when considered with the country information did not provide a sufficient basis to be satisfied that the applicant faces a real chance of serious harm or a real risk of significant harm in Vanuatu. The delegate considered that the applicant’s protection claims were vague, without any substantiating details, although the applicant had been given the opportunity to provide all of the details of their protection claims:

    • The application form that they completed informed them that they should provide all of their claims for protection and all documentation or other evidence to support their claims. It also informed the applicant that a decision could be made on the information provided in their application.
    • On 24 March 2023 the applicant was sent an acknowledgement of valid application correspondence which advised them they could provide additional information relating to their claims and how they could provide this. The correspondence also informed the applicant that the decision on their application could be made without another opportunity for them to present any further information.

11. The delegate also referred to country information, noting that Vanuatu has generally functioning laws, impartial judiciary, and a reasonably effective police force in place, and found that the applicant would be able to avail himself of effective state protection on return to Vanuatu should he need to do so.

12. There are no non-disclosure certificates on the Departmental file.

    The Tribunal

13. On 14 September 2023 the applicant lodged an application for review to the Tribunal.

14. On 15 September 2023, the Tribunal sent the applicant an acknowledgement letter, confirming that it is important that he keep the Tribunal informed of any change in his contact details, and he was requested to provide any relevant documents or information to the Tribunal as soon as possible. No information or documents were provided.

15. On 27 September 2023 the Tribunal sent the applicant an invitation to attend a hearing on 12 October 2023 at 2.00pm. He was informed that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone, and he was thus invited to give evidence and present arguments at a hearing. He was requested to complete and return the “Response to hearing invitation” within 7 days, and to provide all documents he intends to rely on to support his case by 5 October 2023. The applicant was advised that if he was not able to appear as scheduled at the hearing, for instance, if he was not available on this day or if he believed that he would have trouble participating in the hearing as arranged, he was requested to let the Tribunal know this as soon as possible. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also stated that if he did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the review without further notice.

16. On 28 September 2023 the Tribunal requested by email that the applicant provide to the Tribunal a copy of the relevant documents from the delegate. On 29 September 2023 he provided a copy of the delegate’s notification letter and decision record to the Tribunal.

17. The applicant did not, however, respond to the hearing invitation.

18. The Tribunal sent the applicant two SMS reminders about the hearing, 5 business days and one business day before the scheduled hearing.

19. The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why he did not attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. The Tribunal also called the applicant at 2:15pm; he did not answer, and a message was left that his hearing had been scheduled to start at 2pm and he should contact the Tribunal. The Tribunal has not received any response. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Country of reference

20. The applicant produced his passport issued by the government of Vanuatu to the Department, and the Department accepted that he was a citizen and national of Vanuatu and assessed his claims against Vanuatu. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Vanuatu, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Vanuatu.

    Satisfaction of claims

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

22. In the circumstances where an applicant does not attend a hearing to which he is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:

    As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

23. The issue in this case is whether the applicant is a refugee or entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

24. The Tribunal has considered on the evidence before it whether there is a real chance that the applicant faces persecution and/or a real risk of significant harm if he returns to Vanuatu.

25. The applicant has only provided an application form and has not taken the opportunity to provide more details on his claims, either to the Department as requested[2], nor has he provided any additional documents or information to the Tribunal after his application had been refused by the Department.  He did not take the opportunity to provide any additional detail either in writing or orally at a hearing to the Tribunal.

    [2] As set out in the delegate’s decision record

26. The Tribunal had a number of concerns with the applicant’s claims and considered that there was a lack of detail and information.

27. The applicant claimed that he and his father had “always struggled” but he has not explained what he meant by this. The applicant has not explained the basis of his claimed entitlement to any particular land. He claims that they had to stay away from their home island of [Location 1] but he has not explained when this decision was made, nor the reason why they had to stay away, nor whether they ever returned and if so what happened. Although there is a suggestion that family politics was putting their safety at risk, the details of this have not been explained.  

28. The applicant suggests that chiefs “favour” first born sons and male children, however the applicant has not explained why he and/or his father and/or mother did not commence formal action before the community chiefs or in the courts in relation to land entitlements. He has not explained what he meant when he asserted that “authorities don’t have as much right to handle land disputes” and he also didn’t explain what he meant when he said that “these issues often get overlooked”.

29. The applicant has also not explained why they were being targeted by his uncle’s side of the family if, as he claims, his parents and he stayed away from [Location 1] and took no action. He has also not explained why he will be treated as an outcast by his uncle and his children, nor why this is of significance to him given he appears to claim there is not an ongoing relationship with the uncle. 

30. The applicant suggests that “we” have been stateless in our own community since his father passed away however he has not explained who he is referring to when he states “we”, nor has he explained who is “our community”, nor has he stated when his father passed away, nor why he is considered to be stateless.    

31. The applicant has not explained when he was assaulted, whether he had any injuries, whether he sought treatment for this, nor has he explained why he did not approach the police in this regard, noting that, as set out in the delegate’s decision record, there is a functioning police force in Vanuatu. 

32. The applicant claims that he received threats however he has provided no details of any threats including when they were received and the content of the threats. He asserts that he “strongly believes” he will be physically assaulted however he has not explained why.

33. Further, despite the claimed risk of being physically assaulted, he appears to have worked, and resided in the same house, right up until the day he came to Australia. This would suggest that if someone wanted to assault him, they could have found him and done so at home. 

34. The Tribunal is not satisfied on the evidence before it that the applicant faces a real chance of serious harm or a real risk of significant harm for any reason if he returns to Vanuatu.

35. The Tribunal has considered the applicant’s claims individually, and on a cumulative basis, having regard to the findings that it is not satisfied that the applicant’s claims are made out, other than those claims accepted above, the Tribunal rejects all the various claims made and it is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion in the reasonably foreseeable future in Vanuatu, nor that there is a real chance he would be persecuted for one or more of those reasons anywhere in Vanuatu. Nor is the Tribunal satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, namely Vanuatu, there is a real risk that the applicant will suffer significant harm.

    Conclusion

36. 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).

37. 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).

38. 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

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

    Christine Cody
    Member

    
    

    ANNEXURE A - CRITERIA FOR A PROTECTION VISA

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

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

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

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

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

   Mandatory considerations

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

   
    

   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.

   …