2317778 (Refugee)

[2024] AATA 3170

2317778 (Refugee) [2024] AATA 3170 (10 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317778

COUNTRY OF REFERENCE:                   Papua New Guinea

MEMBER:Sean Baker

DATE:10 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a)of the Migration Act.

Statement made on 10 May 2024 at 3:15pm

CATCHWORDS

REFUGEE – Protection Visa – Papua New Guinea – victim of domestic violence – gender-based violence – membership of the particular social group – PNG women – there are not effective protection measures available – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 65, 499

Migration Regulations 1994, Schedule 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 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 27 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   CLAIMS AND EVIDENCE

2. The applicant, a citizen of Papua New Guinea (PNG), applied for the visa on 18 August 2023. The applicant was born on [date] in what was then the Australian Territory of Papua. At independence of Papua New Guinea in 1975 she acquired Papua New Guinean citizenship. The applicant lived in Port Moresby. She speaks English, Motu and Pidgin. She is a Uniting Christian.

3. In her application, the applicant claimed:

   ·     She left PNG in March 2022 because she had been in an abusive relationship with a man called [Mr A] from January 2018 to March 2022. During that time, the applicant was beaten, kicked, threatened with weapons and suffered family violence which meant she almost died and caused her to suffer from depression and weight loss.

   ·     She ran away in 2020 but [Mr A] looked for he. She was only safe when she lived with her brother but she had to remain in his house and could not go out and support herself. It had an impact on her brother and his family as they were worried about the applicant and also afraid of [Mr A].

   ·     She fears that if she returns to PNG, she will be killed as their ex-partner would be more jealous and abusive if he found out that the applicant had been to Australia.

   ·     The applicant did not report the domestic violence matter to the PNG authorities as [Mr A] threatened the applicant that if she spoke to the authorities, he would kill the applicant’s father and other members of the applicant’s family. The applicant does not think the authorities would be able to guarantee her safety as there is a lot of corruption in the police force in PNG and a woman beaten by her partner is not taken seriously.

4. The applicant attended an interview with the Department by video.

5. The delegate refused to grant the visa on the basis that they did not accept that the applicant had been in a relationship with [Mr A], that even if she had that her claimed experience of domestic violence did not occur, and that the claim she and her brother had dealt with her dislocated limb without medical attention was fabricated. The delegate found the applicant did not fear being persecuted and there was no real risk the applicant would suffer significant harm.

6. To the tribunal the applicant provided:

   ·     A copy of the delegate’s decision.

   ·     A statutory declaration of the applicant made 16 January 2024.

   ·     A statutory declaration of the applicant’s father made 16 January 2024

   ·     A character reference from Pastor [B] of [a] Church Sydney.

   ·     Two screenshots said to be of [Mr A]’s [Social media] profile.

7. The applicant appeared before the Tribunal on 29 April 2024 to give evidence and present arguments. The applicant was represented in relation to the review.

   Criteria for a protection visa

8. 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.

9. 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.

10. 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).

11. 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.

12. 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.

    Mandatory considerations

13. 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

14. The issue in this case is whether the applicant will be persecuted n return to PNG or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to PNG..For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    The relationship and family violence

15. The delegate did not accept that the applicant was in a relationship with [Mr A].

16. Having listened to the interview ad spoke with the applicant I have formed a different view. The applicant was able to provide a level of detail about the relationship such as where and when they met, her initial thoughts of [Mr A], how the relationship developed. This information was specific and spontaneous and accords with her earlier statements. She was able to describe how the relationship degenerated into one of family violence, how she learned [Mr A] was not working, how she discovered he was married to another woman and had two children.

17. Her evidence is supported by her statutory declaration which states that she was unable to provide further detail at the interview with the department because she was traumatised. It is also supported by the [social media] screen shots she refers to in her declaration which she claimed were of [Mr A] and his children and she was able to discuss these spontaneously.

18. Her evidence is further supported by the statutory declaration made by her father which describes the applicant and [Mr A]’s relationship and her fleeing to her family for safety in some detail.

19. I have considered the concerns raised by the delegate. In the context of the environment and relationship that the applicant described I do not share the concerns of the delegate about what might be characterised as superficial aspects of the relationship such as being aware of her ex-partners birthdate (Which she has now supplied). In relation to concerns about her description of the incidences of violence, it is well established that trauma responses may include lack of detail or difference in detail.[1] If the applicant had suffered what she claimed, it is possible that what were perceived as poor responses were partly or wholly explained by this cluster of symptoms.

    [1] See for example Strange D, Takarangi MK. Memory distortion for traumatic events: the role of mental imagery. Front Psychiatry. 2015 Feb 23;6:27. doi: 10.3389/fpsyt.2015.00027. PMID: 25755646; PMCID: PMC4337233; Grégoire, L., Gosselin, I., & Blanchette, I. (2020). The impact of trauma exposure on explicit and implicit memory. Anxiety, Stress, & Coping, 33(1), 1–18. Pitts, B.L., Eisenberg, M.L., Bailey, H.R. et al. PTSD is associated with impaired event processing and memory for everyday events. Cogn. Research 7, 35 (2022).

20. Having regard to the country information that violence against women and girls in PNG is very common, among the most common in the world, and that sources report that almost all women and girls will be subject to violence at some point during their lives, that family violence is still seen as a personal problem and little assistance is offered,[2] I find the applicant’s claims of violence in the relationship, the pattern of flight to family and return to her ex-partner, and her unwillingness to seek assistance from the police or medical attention for her injuries is entirely consistent with country information.

    [2] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 3.18 – 3.19.

21. Having considered the claims of the applicant, I find that they are sufficiently detailed and consistent that I accept them in total. I accept that she was in a relationship with [Mr A] from January 2018 until December 2020 when she fled to her brother’s house. I accept that she was subjected to serious incidents of violence in the relationship from [Mr A], of a repeated nature. I accept that in this time she attempted to leave the relationship and their shared home and would flee to her brothers’ houses, but would be convinced to return by [Mr A] and those with societal influence such as their Pastor.

22. I find that from December 2020 she lived at her brother’s house in hiding and, when she left to go to work, she would be escorted by her brother. I accept that throughout this time [Mr A] maintained an interest in the applicant and would park outside her brother’s house. I accept that this continued until her family told [Mr A] that she had left the house.

23. I accept that since the applicant has been in Australia [Mr A] has asked people where the applicant is. I accept that sometime in 2022 he sent the applicant a number of friend requests on [social media] which she deleted.

    What will happen to the applicant on return?

24. In considering what may occur if the applicant returns to PNG, I have had regard to her evidence which I have accepted, the information about the situation for women and societal and government responses to family violence, and information about the situation for victims/survivors of family violence.

25. The applicant claims that [Mr A] is continuing to look for her. She said that she believed his pride had been affected by her leaving him. She said that every time she left, he would come and find her and bring her back and it would be the same. She said that once she left the relationship in December 2020, she was hiding from him and relying on the protection of her family until she left for Australia in 2022. She said she could not rely on her brothers to guarantee her safety.

26. I accept that if the applicant returns to Port Moresby, she will return at first to the house of one of her brothers, being the only family that she has in PNG, and that there is a real chance that [Mr A] would become aware that she has returned to Port Moresby and PNG and he would be able to locate the applicant. I have accepted above that [Mr A] continues to have an interest in the applicant, having sought to friend her on [social media] and asking people about her whereabouts. I accept he has in the past orchestrated the applicant’s return to their home, including by having socially powerful figures such as a Pastor attend with him. I find that if the applicant returned to Port Moresby now or in the reasonably foreseeable future, [Mr A] would attempt to locate her and would attempt to either convince or pressure her to return to living with him, and/or would act violently towards her, as he has in the past. I find that this harm would constitute serious harm, as it has in the past.

    Is there a real chance the applicant will be persecuted on return to PNG?

27. I accept above that there is a real chance the applicant will be harmed by [Mr A] on return to Port Moresby, PNG.

28. I have had regard to information about the situation for women and societal and government responses to family violence in PNG. PNG has amongst the highest rates of gender-based violence in the world.[3] Traditional values and gender roles mean women are restricted in their ability to participate fully in PNG society and face a high risk of societal discrimination, and face a high risk of gender based violence nationwide and across all social strata.[4] Family violence is seen as a private matter and one in which the state should not intervene.[5] State protection, despite some encouraging signs, is largely unavailable and police themselves commit a high level of gender-based violence.[6]

    [3] ‘Study finds PNG women with more wealth, education experience higher levels of domestic violence’, ABC News, 23 February 2023; Inquiry into gender equality policies and institutions, gender-based violence and sorcery accusation related violence', Papua New Guinea Parliamentary Committee on Gender Equality and Women's Empowerment, October 2023, p.13.

    [4] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 3.19; United States Department of State 2023 Country Reports on Human Rights Practices: Papua New Guinea.

    [5] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 3.22

    [6] DFAT Country Information Report - Papua New Guinea, 6 September 2022.

29. Having regard to the country information and the evidence of the applicant, I find that [Mr A] has perpetrated family violence towards the applicant, and I accept there is a real chance he will do so in the future, on the basis at least in part of the patriarchal structures in PNG society which continues to reinforce an understanding by men that the women they are (or were) in a relationship with are their property. I accept, in this context, that the serious harm that [Mr A] perpetrated on the applicant in the past, and which I accept there is a real chance he will perpetrate on her in the future, is gender based violence, directed at the applicant at least in part on the basis of her status as a ‘PNG woman’, who [Mr A] (and PNG society at large), accept as being his property on the basis of their past relationship, and the violence as being a private matter between them. I accept that the group ‘PNG women’ shares the characteristics of the group, being their gender and having PNG nationality, and that those are innate characteristics. I find that this is an essential and significant reason for the persecution, as above that it involves serious harm to the applicant, and that the conduct of [Mr A] would be systematic and discriminatory in that it would be targeted at the applicant and non-random.

    Does the real chance of persecution relate to all areas?

30. The Full Federal Court has held that the reference to ‘all areas of a receiving country’ means all areas ‘where there is safe human habitation and to which safe access is lawfully possible’, and that ‘areas which are unsafe or physically uninhabitable or so inhospitable that a person would be exposed to a likely inability to find food, shelter or work are not included within the areas of a receiving country’.[7]

    [7] FCS17 v MHA (2020) 276 FCR 644 at [80]–[81].

31. I have found above that the applicant would return to either of her brothers’ houses, in Port Moresby, where she would be located and harmed by [Mr A].

32. I have considered whether there is an area of PNG where the applicant could live where she would be safe from [Mr A]. I note that the DFAT report states that while people can and do relocate internally, this is complicated for those feeling gender-based violence, with those who relocate often recognised in their new home and this information will typically be communicated to their place of origin, presenting a continuing threat to those attempting to escape violence.[8] Having regard to the fact that the applicant and [Mr A] have not been in a relationship for some time, that the applicant said her family refuses to have contact with [Mr A], and that they do not have children or other shared responsibilities which would necessitate contact, I find that the chance of the applicant returning to another part of Papua New Guinea and this becoming known to [Mr A] to be remote.

    [8] DFAT Country Information Report - Papua New Guinea, 6 September 2022, 5.16.

33. DFAT also notes however that lack of resources and language difficulties can cause difficulties, especially for single women. The applicant gave evidence that her only relatives in PNG are her brothers in Port Moresby. She was born there and so does not and would not have wantok in other areas of PNG. Her ability to live in other areas of PNG would also be severely compromised by her lack of wantok connections in any other areas.[9]

    [9] DFAT Country Information Report - Papua New Guinea, 6 September 2022.

34. Having regard to this information, and the information about the status of women in PNG society, I find that the applicant would not be able to support herself, find food shelter and work in other parts of PNG where she has no family or tribal support and would be a single woman. As such I find that there is no are of PNG where there is safe human habitation and to which safe access is lawfully possible in the applicant’s circumstances. The real chance of persecution therefore extends to all areas which are feasible to consider.

    Are effective protection measures available to the applicant?

35. A person does not have a well-founded fear of persecution if effective protection measures are available to the person.

36. State protection is rarely available for women experiencing gender-based violence.[10] Whilst PNG has enacted laws to protect women and children from family and gender-based violence, these laws are rarely enforced and gender-based violence is committed with impunity.[11] DFAT assesses that women who experience gender-based violence are unlikely to be able to avail themselves of adequate state protection.[12]

    [10] ‘DFAT Country Information Report. Papua New Guinea', Department of Foreign Affairs and Trade, Australia: Department of Foreign Affairs and Trade (DFAT), 06 September 2022; Human Rights Watch World Report 2023', Human Rights Watch (HRW), 12 January 2023.

    [11] 'Country Reports on Human Rights Practices for 2022 - Papua New Guinea', US Department of State, 20 March 2023, p.12; ‘DFAT Country Information Report. Papua New Guinea', Department of Foreign Affairs and Trade, Australia: Department of Foreign Affairs and Trade (DFAT), 06 September 2022, pp.15-16.

    [12] ‘DFAT Country Information Report. Papua New Guinea', Department of Foreign Affairs and Trade, Australia: Department of Foreign Affairs and Trade (DFAT), 06 September 2022, p.16.

1. Having regard to the country information I find that effective protection measures are not available to the applicant because the PNG authorities are not able to offer protection to the applicant as a PNG woman, nor would any protection offered be durable.

   Right to enter and reside in a third country

2. Even where an applicant is found to be a person in respect of whom Australia has protection obligations, they will not be eligible for a protection visa if they have a right to enter and reside in another country where protection is available to them. I have considered the information before me but there is no information which would indicate that the applicant has a presently existing right to enter and reside in any third country and I find as such.

   Conclusions

3. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

   DECISION

4. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

   Sean Baker
   Member
   -  Extract from Migration Act 1958

   
   
   ATTACHMENT 

   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.

   …