2316334 (Refugee)

[2024] AATA 1356

2316334 (Refugee) [2024] AATA 1356 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2316334

COUNTRY OF REFERENCE:                   East Timor

MEMBER:Mark O'Loughlin

DATE:14 March 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 14 March 2024 at 3:56pm

CATCHWORDS

REFUGEE – protection visa – Timor-Leste – particular social group – member of a martial arts group – economic conditions – employment – increasing crime rate – snatch and grab crimes – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2

CASES

GLD18 v MHA [2020] FCAFC 2

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

1. On 9 October 2023, under s 65 of the Migration Act 1958 (Cth) (the Act), a delegate of the Minister for Home Affairs decided to refuse to grant the applicant a protection visa. The applicant has applied to the Tribunal for review of that decision.

2. The applicant applied for the visa on 7 August 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant would not be protected by the Government of Timor-Leste.

3. The applicant, having been invited to do so pursuant to the Act, appeared before the Tribunal on 23 November 2023 to give evidence and present arguments. 

4. Although it had been contemplated that the hearing would be by video link, the applicant was unable to establish contact other than by telephone audio link.  In the circumstances the Tribunal elected to proceed, having been assured by the applicant that he was content to proceed that way.

5. The Tribunal invited the applicant to advise if he considered there were any problems making himself understood.

6. The applicant did not complain that his hearing was compromised.  The Tribunal did not observe anything to suggest that communication with the applicant was compromised.

7. The Tribunal is satisfied that the applicant was granted an effective hearing.

8. The Tribunal was assisted in the hearing by an interpreter in the Tetum language.

   CRITERIA FOR A PROTECTION VISA

9. The relevant 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). To be eligible for a Protection Visa an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c) of the Act.

10. There are definitions of some terms in s36 and in s5 of the Act. The relevant parts of those provisions are attached.

11. S36(2)(b) and (c) relate only to persons claiming to be members of the same family unit as someone in respect of whom Australia has protection obligations.  The applicant does not claim to be such a person and there is no evidence that he is.

12. The Tribunal finds that the applicant does not satisfy s36(2)(b) or (c). 

13. Therefore, to succeed the applicant must satisfy either:

    a.s36(2)(a)- the “refugee criterion”, or

    b.s36(2)(aa)- the “complementary protection” criterion.

    Mandatory considerations

14. 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, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in this case is whether, based on what is accepted of the claims made by the applicant or arising on the evidence, the applicant is a person to whom Australia has protection obligations.

    Claims

16. The applicant set out claims in the Protection Visa Appliction (PVA) lodged online on 27 August 2023 on pages 11 and 12 of that document.  The Tribunal summarises the claims in the PVA in this way:

    a.The applicant left Timor-Leste in search of better economic conditions.

    b.The applicant thinks there is much crime in Timor-Leste.

    c.Theft and snatch cases are common.

    d.He has to support his parents and siblings financially.

    e.He does not believe the government of Timor-Leste will protect him.  Many people complain about the government.

    f.The applicant could not relocate to avoid harm.

17. The applicant further augmented his claims in his evidence to the Tribunal as set out below.

    Background

18. The Tribunal has regard to the PVA and to the delegate’s decision of 9 October 2023, a copy of which was provided by the applicant.

19. The applicant was born on [date] and at the time of this decision is [age] years old.

20. He came to Australia [in] October 2022 on a temporary work visa.

    Evidence before the Tribunal

21. The applicant told the Tribunal he had paid someone to fill the PVA out for him.

22. He said he told that person why he did not want to return to Timor-Leste.

23. He told the Tribunal that he did not want to return because he is a member of a martial arts group (MAG) and because of that his life is at risk.

24. The Tribunal observed that there was no reference to the applicant being in a MAG in the PVA.  The applicant said the person who filled in the PVA told him it was not necessary to add that.

25. The applicant told the Tribunal the person who helped him said not to include that information and that he could explain those details when he was questioned.

26. The Tribunal advised the applicant that it would be very careful before accepting as true claims that had not been raised earlier.

27. The applicant said he had been a group member since 2014.  He said he had joined [Group 1] martial arts group.

28. He told the Tribunal he had joined the MAG when he was living about 3 hours away from the family farm and attending school.

29. The family farm is [in Region 1].  The applicant had moved [away] in about 2014 and stayed until about 2021 when he returned to the family farm.

30. He said while he was [in location] he had worked in a shop and as [an occupation 1], but work was sporadic and difficult to find.  He would work for a day or two for a bit of cash.  The MAG would help him find work.

31. He said the MAG was helpful in many ways, it encouraged members to live a better life and gave members a network of connections, but there was also violence and fighting involved.

32. He said he returned to [Region 1] and the family farm in about 2021 because work was becoming harder to get and the family asked him to come back to help them grow [crops].

33. He stayed [in Region 1], working on the family farm, for about 2 years before he came to Australia.

34. He said while he was living on the farm he was not involved in any MAG related violence because the farm was not near to a town.

35. He said he avoided MAG activity for about 2 years before he came to Australia.

36. He said if he has to go back to the farm it will be very difficult for him because as the eldest son, he is expected to support his [siblings] who are at school.  He said that because of the economic conditions it would be very difficult and one or more of his [siblings] may need to leave school.

37. The applicant told the Tribunal he applied for the visa because his life in Timor involves looking after his family and sustaining their lives. 

38. The applicant claimed he did not feel safe in Timor-Leste because of the problem with crime.

39. He did not claim to have been affected by crime in the 2 years before he left, while he was living on the family farm.

    Country Information – Marital Arts Groups

40. The Tribunal has considered generally available information about martial arts groups (sometimes referred to as ‘martial and ritual arts groups’) in Timor-Leste.

41. One commentator says:        

    ‘The common ground for martial arts groups is the practice of a particular form of sports, such as karate,pencak silat, judo, or taekwondo. They have complex histories dating aback to the Indonesian occupation, were partly involved in the liberation struggle, and are politically and personally affiliated, cerating a complex,  nationwide network of alliances.’[1]

    [1] ‘Security, Violence and Outlawed Martial Arts Groups in Timor-Leste’, Pawelz J, May 2015

42. A report on the involvement of Martial and Ritual Arts Groups (MAGs) in the 2023 Timorese election noted that MAGs are ‘…mass membership organisations which play important roles in Timorese society and political culture.”[2]

    [2] Fundasaun Hahein ‘Politicisation of Martial Arts Groups: implications for national security and the 2023 Parliamentary Election’ April 17 2023.

43. The same report goes on to describe MAGs as “…popular, combat-oriented organisations with complex relations with civil society, state institutions and resistance history, MAGs play a unique role in social and political life in Timor-Leste.’

44. The same report goes on to observe ‘… MAGs actively promote group loyalties and some even use blood oaths, while fiercely protecting their members from attacks by other groups.’

45. On balance it appears that MAGs are well known in Timor Leste and are perceived as being associated with violence and increasing political influence.

    Claims

46. The claims made by the applicant before the Tribunal differ to those made prior to the hearing in that the applicant now claims he is a member of a MAG and faces the possibility of violence because of that if he returns.

47. The applicant claims to face harm because of generalised crime.

48. The applicant claims to face harm because of the economic situation in Timor-Leste.

    Findings

    S36(2)(a) - REFUGEE CRITERION

49. 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. This is called the “refugee criterion”.

50. S5H(1)(a) defines “refugee” as a person who has a nationality and is outside the country of their nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

51. The Tribunal has had regard to the applicant’s identity documents and is satisfied that the applicant is of East Timorese nationality. Further, the Tribunal is satisfied that the applicant is outside East Timor, his country of nationality. 

52. The Tribunal must therefore consider whether the applicant has a well-founded fear of persecution in East Timor, which is the next part of the definition of “refugee” at 5H(1)(a).

53. S5J defines “well-founded fear of persecution”.  S5J(1)(a)(b) and (c) establish prerequisites that must all be satisfied to come within the definition.  They provide respectively that the applicant will come within the definition if:

    a.The applicant fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (“refugee reasons”); and

    b.There is a real chance that, if the applicant returned to East Timor, he 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 East Timor.

54. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

55. The Tribunal has regard to the applicant’s evidence that he had not experienced violence due to his association with an MAG for about two years before coming to Australia.

56. The Tribunal notes that the applicant’s claim to be a member of a MAG is a new claim for the purposes of S423A of the Act because it was not raised before the primary decision was made.

57. S423A (2) directs the Tribunal to draw an inference unfavourable to the credibility of the claim if it is satisfied that the applicant does not have a reasonable explanation why the claim was not raised before the primary decision was made.

58. The applicant said he paid a stranger to fill out the PVA for him.

59. He said he told the person who filled out the PVA about his membership of a MAG.

60. He said the person advised him not to include that and to raise it when he was interviewed.  The applicant said he relied on that advice.  He knew that information was not on the form when it was lodged.

61. The Tribunal noted that the PVA included claims about criminal activity in Timor-Leste.  It refers to snatch and grab cases. There is no apparent reason why the applicant would not have mentioned he is a member of a MAG if that is so.

62. Further, the Tribunal is satisfied that it is not reasonable for the applicant to rely on the guidance of a stranger acting as an informal migration agent in electing to withhold relevant information when completing the protection visa application.

63. Therefore, pursuant to S423A the Tribunal draws an inference unfavourable to the credibility of the claim that the applicant is a member of a martial arts group in Timor-Leste.

64. In any event, the Tribunal has regard to the applicant’s evidence that he was not involved in any MAG related activity and did not suffer harm of any kind due to MAG activity after he returned to the family farm [in Region 1].  The Tribunal does not accept the applicant will face harm due to MAG activity if he returns to [Region 1].

65. The Tribunal does not accept the applicant’s claim to face harm due to his involvement in a MAG.  This claim does not bring the applicant within S5J(1)(b)

66. As to the applicant’s claim to face harm due to generalised crime, the applicant does not claim to have suffered harm due to generalised crime in the past.  He could not say why he would suffer harm due to generalised crime in the future although he did say he believes criminal activity is increasing.

67. He said criminal activity was evident when he was living away from the farm, but he did not say it was a factor in [Region 1].

68. The Tribunal does not accept the applicant’s claim to face harm due to generalised criminal activity.  The Tribunal finds that the applicant’s claim to face harm due to generalised criminal activity is not made out and does not bring the applicant within S5J(1)(b)

69. The applicant told the Tribunal about the economic situation in Timor-Leste and said it was a most significant factor in him deciding to come to Australia.

70. The Tribunal accepts his evidence that he is the eldest son and considers it his obligation to try to support his family, including his siblings who are at studying.

71. The Tribunal accepts his evidence that there is little work and few opportunities to earn money, particularly in his home of [Region 1].

72. The Tribunal is satisfied that the applicant’s family live largely on the produce they are able to grow on their farm.

73. There is nothing to suggest that the economic hardship the applicant’s family might suffer is due to other than the general state of the Timor-Leste economy.  The Tribunal is satisfied the applicant does not face persecution arising from the state of the Timor-Leste economy involving systematic and discriminatory conduct as contemplated by S5J(4)(c).

74. The Tribunal finds that there is no real chance of harm to the applicant due to him being persecuted for any of the reasons set out in S5J(1)(a) of the Act, a copy of which is attached to this decision.

75. That being the case the applicant does not meet S5J(1) of the Act and does not have a ‘well-founded fear of persecution’.  Therefore the applicant does not meet the meaning of ‘refugee’ in S5H of the Act.

    Conclusion re Refugee Criterion

76. The applicant does not meet the definition of “refugee” in 5H(1) and does not come within S36(2)(a).

    S36(2)(aa) - COMPLEMENTARY PROTECTION CRITERION

77. Although the applicant has been found not to meet the refugee criterion in s 36(2)(a), he may nevertheless be entitled to the grant of the visa if he meets s 36(2)(aa) (‘the complementary protection criterion’).

78. To meet S36(2)(aa) of the Act the applicant must be a person to whom Australia has protection obligations because, as a necessary and foreseeable consequence of him being removed to East Timor there is a real risk that he will suffer significant harm.

79. The Act provides a definition of “significant harm” at s36(2A) and some exclusions at (2B).

80. S36(2A) provides as follows:

    (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.

81. The Tribunal has considered whether the applicant faces a real chance of serious harm when considering the refugee criterion.  The Tribunal’s findings include a finding that his claims are not made out and he does not face harm of any kind for reasons related to the applicant’s claimed involvement with a MAG or the general level of crime in Timor-Leste.

82. In relation to the applicant’s claims to face harm by reason of general economic conditions in Timor-Leste the Tribunal has regard to authorities that find that ‘significant harm’ for the purposes of S36(2A) contemplates harm that is a result of the conduct of an actor or perpetrator[3].

    [3] see GLD18 v MHA [2020] FCAFC 2 at 31.

83. General economic conditions will not arise from the conduct of an actor or perpetrator against the applicant and the Tribunal is satisfied the applicant will not suffer significant harm because of the economy of Timor-Leste.

84. It follows that the Tribunal is not satisfied the applicant faces ‘significant harm’ for the purposes of S36(2A).

85. Therefore the applicant does not come within s36(2)(aa) and does not meet the complementary protection criterion.

    Conclusions

86. 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).

87. 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).

88. The Tribunal has found that the applicant does not satisfy 36(2)(b) or (c) 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.

89. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).

    DECISION

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

    Mark O’Loughlin

    Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …