2316448 (Refugee)

[2024] AATA 758

2316448 (Refugee) [2024] AATA 758 (19 January 2024)

DECISION RECORD

DIVISION:  Migration & Refugee Division

CASE NUMBER:  2316448

COUNTRY OF REFERENCE:                   East Timor

MEMBER:  Peter Haag

DATE:  19 January 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 January 2024 at 9:54am

CATCHWORDS

REFUGEE – protection visa – Timor-Leste – particular social group – threats from money lenders – confiscation of property – loan agreement – financial hardship – fear of killing – state protection – decision under review affirmed

LEGISLATION

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

CASES

MIAC v SZQRB (2013) 210 FCR 505

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.

In accordance with s 431 of the Migration Act 1958 (Cth), the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant.

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 9 October 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 East Timor, applied for the visa on 5 September 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or

   s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Act).

3. The applicant appeared before the Tribunal on 15 December 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

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

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

to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Section 5AAA of the Act

1. Pursuant to s 5AAA of the Act, it is for the applicant to specify all particulars of their 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 the applicant in specifying any particulars of their claim, nor does the Tribunal have any responsibility or obligation to establish or assist in establishing the claim. The Tribunal applied this provision when assessing the applicant’s claims and evidence.

Mandatory considerations

1. 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.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Applicant’s background

1. In her protection visa application, the applicant claims to be a citizen of Timor-Leste, born on [date] in [Town 1], Timor-Leste. The applicant claims to be an ethnic Timorese of Catholic faith who can speak, read, and write in Tetum, English and Indonesian.

2. In her visa application, the applicant provided details of her mother and father, who are both citizens and residents of Timor-Leste.

3. At the time of her visa application, the applicant had been residing in [Town 2], Victoria, Australia, from 1 September 2023. Prior to this, the applicant resided in [Town 3], Queensland, Australia, between [March] 2023 and 31 August 2023. Between 6 January 2016 and [March] 2023, the applicant resided in Dili, Timor-Leste. Prior to this, between [birth] and 5 January 2016, the applicant resided in [Town 1], Timor-Leste

4. At the time of her visa application, the applicant claimed to be unemployed. The applicant was previously employed in agriculture in Queensland, Australia, between [April] 2023 and 30 August 2023. Prior to this, between [September] 2020 and [January] 2021 the applicant was employed as [an occupation 1] at a [business 1] in Dili, Timor-Leste.

5. In her visa application, the applicant said she completed primary and high school in [Town 1], Timor-Leste between [specified years]. The applicant completed a course in [subject 1] in Dili, Timor-Leste, between [specified years].

Applicant’s identity

1. The applicant provided the Department with an uncertified copy of her Timor-Leste passport.

2. The documents provided by the applicant are consistent with her evidence to the Tribunal in relation to her identity. There is no evidence to suggest that the applicant has a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of

   Timor-Leste, and as such her protection claims will be assessed against Timor-Leste as the country of reference and ‘receiving country’ respectively.

Migration history

1. [In] March 2023 the applicant arrived in Australia holding a Temporary Work (GD-403) visa.

2. On 5 September 2023 the applicant lodged an application for a protection visa. On 9 October 2023 the delegate of the Minister refused the application.

3. On 12 October 2023 the applicant lodged an application with the Tribunal for review of the protection visa refusal decision.

Claims for protection and other supporting documentation

1. The applicant’s claims for protection were provided in her protection visa application lodged on 5 September 2023. Her protection claims are as follows (unedited):1

   I can't go back to my country because I have many dept that I have to pay off and apart from that, my family also has financial problems so I have to earn money to support them and at the same time I can avoid threats from dept collectors. I still need about AUD[amount] to make ends meet and this include the interest rate on dept charge to me.

   Did this applicant experience harm in that country or those countries?

Yes

The dept collectors brought their family and come to my house to confiscated various items such as motorbikes, TVs, chairs and other items which made me depressed because I didn't know how to pay this much debt and my family was under pressure all the time.

Did this applicant seek help within the country or those countries after the harm?

No

My parents are very poor, they can't help me to pay my dept so they are very burdened with the problem that I face and it will be safe if I have pay off the dept.

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

I have nowhere to run because I didn't know anyone from another parts of that country and my family are very poor in that country too that's why I didn't move to anywhere because they still try to seek me.

Explain what the applicant thinks will happen to them if they return to that country or those countries:

They will be threaten me badly and I will probably be kill by them and they have many connection from every places so I can't feel safe in there.

1 Department file [number], Doc ID 11654338.

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

My Famliy and I are very poor family this makes me bullied by people who take advantage. But after I applied for Australia seasonal worker I knew that I will have high income to pay off the dept that I have borrow before. But until now I have to face whatever threat that they gave to me. My parents became scared and always remind to pay the dept until its over.

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No

The police can't do anything or can't help case like mine. This is because there are too many case like mine but the authorities are also unable to give a guarantee over one side agreement I had to get to the loan.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

No

I had nowhere to run and I have to pay off the dept.

1. The applicant did not provide the Department with any further evidence or documents in support of her protection claims.

2. On 13 October 2023 the applicant provided to the Tribunal a copy of the record of the decision of the delegate of the Minister to refuse to grant the applicant a protection visa.2

3. On 15 December 2023 at the commencement of the hearing, the applicant tendered a bundle of financial documents as evidence of a loan agreement in the sum of US$[amount], disbursed by [Business 1] (the lender) on [a day in] October 2022 to [Ms A] (the borrower). The applicant relied on these documents as evidence in support of her claim that she borrowed a sum of money from a moneylender who she fears will kill her if she does not repay her debt to them.

4. The applicant also said in her visa application and evidence that her family had financial problems. Her parents are poor and don’t have the means to provide a university education for her siblings. The applicant said it is her responsibility to pay for her younger siblings to go to university. She is also a single mother of a child who is [age] who is in the care of her parents. The applicant alone provides for the maintenance of her child. The applicant also said at hearing that if she does not work in Australia, her siblings will not be able to continue their studies. She wants to pay for the construction of a house where her family can live.

5. The applicant arrived in Australia [in] March 2023 holding a Temporary Work (GD-403) visa to work in the Seasonal Worker Program. On 5 September 2023 she applied for a protection visa.

6. At hearing, the applicant informed the Tribunal that she is seeking a protection visa to extend her stay in Australia so that she can achieve her financial objectives. Contrary to

2 Tribunal file 2316448, Doc Id 11638581.

her visa application, the applicant acknowledged she does not fear she will suffer physical harm, but she does fear financial distress.

1. Additionally, and contrary to the applicant’s visa application, the bundle of financial documents the applicant tendered to the Tribunal, when considered with the applicant’s oral evidence, establishes the applicant is not party to the loan agreement that created the debt she is repaying from her earnings in Australia. Her mother is the debtor; she borrowed US$[amount] plus interest from an organisation the applicant said is a legal organisation in Timor-Leste.

2. The loan repayment schedule indicates the first repayment was due [in] November 2022, and between that date and the arrival of the applicant in Australia [in] March 2023, five repayments had been made on time. The repayment schedule also indicates that the last repayment was made [in] December 2023; all proceeding payments had been made. 10 payments out of a grand total of 24 payments are unpaid. The next scheduled payment fell due [in] January 2024.

3. The applicant said in her visa application that debt collectors came to her house and confiscated various items such as motorbikes, TVs, chairs, and other unspecified items. This event made her depressed because she did not know how to repay the debt and her family was under constant pressure. According to the applicant’s evidence the lender is a legal organisation, and she accepts her mother’s debt is legitimately owed to the lender.

4. The applicant did not contend that the confiscation of the property was illegal, and she did not assert the lender was not entitled to take the property. Although the applicant felt depressed because the property was taken, she did not know how to repay the loan, and she could see her family was feeling pressured, the evidence does not establish to the satisfaction of the Tribunal that the way the applicant was feeling amounts to serious harm as defined in s 5J(5) of the Act.

5. Country information available to the Tribunal demonstrates that illegal moneylenders operate in Timor-Leste, and they may use illegal means to force borrowers to repay their borrowings. The applicant’s evidence establishes the lender is a legal organisation, and the applicant does contend, and the evidence does not establish, the loan agreement may be an illegal agreement according to the domestic laws of Timor-Leste.

6. According to the applicant’s evidence, if she returns to Timor-Leste, she would be unable to repay the outstanding amount of the loan, people will come to their home and that would cause her mother to worry.

7. The evidence does not establish that the lender threatened to harm the applicant or members of her family physically, or that the lender otherwise used illegal means to force repayment of the loan, or that the applicant or members of her family would be harmed physically or otherwise be subjected to illegal conduct to force the applicant, her mother or family members to repay the loan, if the outstanding amount of the loan is not repaid.

Findings

1. The evidence does not establish to the satisfaction of the Tribunal that the applicant would be subject to a real chance of serious harm for reasons race, religion, nationality, membership of a particular social group, political opinion, or for any other reason, if she is removed to Timor-Leste now or in the reasonably foreseeable future.

2. Having considered the applicant’s claims individually and cumulatively, the evidence before the Tribunal considered alone and in conjunction with country information available to

the Tribunal is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subject to serious harm for any reason specified in

s 5J(1)(a) of the Act, or for any other reason, if she is removed to Timor-Leste now or in the reasonably foreseeable future. Accordingly, the applicant does not satisfy the criterion in

s 36(2)(a) of the Act.

1. Consequently, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any of the reasons specified in s 5J(1) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.

Complementary protection

1. The Tribunal now turns to whether the applicant satisfies the criterion in s 36(2)(aa) of the Act.

2. A person will meet that criterion if there are ‘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’.

3. Pursuant to s 36(2A), a person will suffer significant harm if:

   (a)they will be arbitrarily deprived of their life; or

   (b)the death penalty will be carried out on them; or

   (c)they will be subjected to torture; or

   (d)they will be subjected to cruel or inhuman treatment or punishment; or

   (e)they will be subjected to degrading treatment or punishment.

4. The test for a ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a): MIAC v SZQRB (2013) 210 FCR 505.

5. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).

6. In applying the decision in MIAC v SZQRB (2013) 210 FCR 505, [246] [297] [342], the Tribunal accepts the ‘real risk’ test is the same as the ‘real chance’ test in the refugee criterion in the Act. Therefore, for the reasons outlined above, the Tribunal is not satisfied that, as a necessary and foreseeable consequence of the applicant being removed to

   Timor-Leste now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm as defined in s 36(2A) of the Act.

7. Accordingly, the Tribunal is not satisfied that the applicant meets the criterion in s 36(2)(aa) of the Act.

8. In summary, for the reasons given above, the Tribunal is not satisfied the applicant meets the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act for a protection visa.

1. There is no suggestion that the applicant satisfies s 36(2) of the Act based on being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who holds a protection visa. It follows that the applicant does not satisfy the criteria set out in s 36(2)(b) or (c) of the Act and cannot be granted the visa.

1. 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) of the Act.

DECISION

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

Peter Haag 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.

…