2320670 (Refugee)

[2024] AATA 2648

2320670 (Refugee) [2024] AATA 2648 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2320670

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Khanh Hoang

DATE:25 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 March 2024 at 2:56pm

CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – economic hardship and climate change – 2022 volcanic eruption and tsunami – food supplies – cost of living – health – decision under review affirmed

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

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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 23 November 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 Tonga, applied for the visa on 16 October 2023. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.

3. On 15 February 2024, the Tribunal invited the applicant to appear at a hearing at its Brisbane registry, scheduled for 6 March 2024. The applicant sought an adjournment of the hearing as she had booked travel during that period. She also requested that the Tribunal conduct the hearing via video as she lived 5 hours away from Brisbane by car. The Tribunal granted the adjournment request and agreed to change the hearing modality to a video hearing. Subsequently, the applicant appeared before the Tribunal on 14 March 2024 to give evidence and present arguments.

4. The applicant was unrepresented in respect of the review.

5. The issue in this review is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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.

    Applicant’s identity and country of reference

11. Based on a copy of the applicant’s passport available on the Department’s file, and in the absence of any other evidence to the contrary, Tonga is the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.

    Mandatory considerations

12. 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

    Evidence before the Department

13. In her protection visa application, the applicant stated that she left Tonga because: of her political opinion; to flee economic hardship; to search or better economic stability; and to flee climate change and rising sea levels. She stated that she suffered ‘psychological, mental, verbal and economic harms and effects’ in Tonga. She stated that she did not seek help within the country because of a ‘fear of retaliation’ and that if she returned to Tonga she will ‘suffer the same as before’. She stated that the government does not ‘have enough resources’ and that she has ‘nowhere to go and no support at all’.

    Evidence before the Tribunal

    The applicant’s background

14. The applicant is now [age] years old. She was born in [Location 1]. She is religiously Christian and belongs to the Free Wesleyan Church. She resided in [Location 1] from 2000 until around 2020 in a house with her sister’s family.

15. The applicant’s father passed away in 2013, while her mother lives in [Country 1] with one of her siblings. She is one of [number] siblings, of whom only one brother and sister currently reside in Tonga. The rest of her siblings are in Australia. The applicant is married but does not have any children. The applicant completed education to college level in Tonga where she studied [Discipline 1]. She was unemployed after she finished school and her sister and brother-in-law provided her with support. Since arriving in Australia on a seasonal worker visa she has been engaged in fruit picking in Tasmania and in Queensland.

16. I asked the applicant how she knew about protection visas and why she applied for protection. The applicant stated that the people in her community told her about the visa. She stated that as her Temporary Activity Visa (subclass 408) was about to expire, she decided looked for a visa to remain eligible to stay in Australia. She stated that she did not have any choice or options, but she does not want to go back to Tonga. She would like to stay in Australia to work. She stated that she did not know what the purpose of a protection visa was and only found that out later.

    The applicant’s claims

17. I asked the applicant why she feared going back to Tonga. She claimed to fear that she cannot provide for her family. She stated that since the volcanic eruption in Tonga and the subsequent tsunami, her family back home were still recovering. She claimed she is not well educated, and she does not wish to continue relying on her sister’s family and would like for them to live in peace. She stated that most people in Tonga were trying to move to elsewhere to make a better life for themselves and their families.

18. The applicant confirmed that the references in her protection visa to climate change and rising sea levels were references to the 2022 volcanic eruption and tsunami. I asked the applicant how those events affected her. She stated that it impacted food supplies, the cost of living and people’s health in Tonga.

19. The applicant reiterated that her main fear of returning to Tonga is for economic reasons — she cannot earn as much money in Tonga as she could in Australia. I asked the applicant whether she had tried looking for work in Tonga in the past and she stated that she had not. I asked whether she would look for work if she were to return to Tonga, and she replied that she was not sure, and restated that the economic situation in Tonga was ‘not good.’

20. I asked the applicant to explain the claim in her protection visa application about her political opinion. The applicant replied that it was mostly about the economics. She stated that nurses and doctors were moving overseas to make a better life for themselves because the salaries were not great. The applicant stated that the government should be doing more to solve the problem. I asked the applicant if she had any negative views or opinions of the Tongan government, and she stated that she did not.

21. I asked the applicant if she had any other fear of returning to Tonga other than the economic reasons and she stated that she did not.

    FINDINGS AND REASONS

    Refugee findings

22. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.

23. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

    Political opinion

24. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

25. In her protection visa application the applicant claimed to have left Tonga because of her political opinion. At hearing, the applicant did not advance any claims or evidence that she suffered harm in the past for reasons of her political opinion. I find that the applicant has not suffered any harm in the past, whether ‘psychological, mental or verbal’ due to her political opinion.

26. While I accept that the applicant has a private opinion that the Tongan government could do more to retain nurses and doctors in Tonga, this in and of itself, does not give rise a well-founded fear of persecution. There is no evidence or information before me to suggest that the applicant has expressed any political opinion adverse to the Tongan government, either in Tonga, or since she has been in Australia, that would bring her to the attention of the authorities. Nor has the applicant advanced any claims that she would express any political opinion upon return to Tonga. There is no basis for the claim that she will be suffer persecution for reasons of political opinion in Tonga. I am not satisfied, and do not accept, that she faces a real chance of persecution in Tonga now or in the reasonably foreseeable future.

    Economic hardship and climate change

27. The definition of a ‘well-founded fear of persecution’ requires that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)(a)).

28. I accept that the 2022 volcanic eruption and the tsunami had an impact on the applicant, her family, and others in Tonga. According to the Department of Foreign Affairs and Trade (DFAT), on 15 January 2022 the Hunga Tonga-Hunga Ha’apai underwater volcano erupted triggering a tsunami.[1] I accept that, as a result, ‘Tongatapu, including the capital Nuku’alofa, experienced significant ashfall and flooding, and infrastructure on several outer islands was largely destroyed’.[2] Australia responded swiftly to these events and committed AUD $3 million in initial assistance and an additional AUD $16 million to support Tonga’s recovery and reconstruction and bolster its COVID-19 response.[3]

    [1] Department of Foreign Affairs and Trade, Hunga Tonga-Hunga Ha’apai Volcanic Eruption and Tsunami, available at Department of Foreign Affairs and Trade, Hunga Tonga-Hunga Ha’apai Volcanic Eruption and Tsunami, available at Department of Foreign Affairs and Trade, Hunga Tonga-Hunga Ha’apai Volcanic Eruption and Tsunami, available at >

    I accept the applicant’s claims that these events impacted food supplies, the cost of living, people’s health, and the economy. I accept that these events, were they to occur in the future, could result in similar impacts. However, I find that the applicant’s claimed fear of suffering ‘economic harms and effects’ or any other harm caused by climate change related events, volcanic eruptions and rising sea levels do not relate to any of the reasons in s 5J(1)(a). Similarly, I accept that the applicant would like to remain in Australia to work. I accept her fears that the economic situation in Tonga is not as good as Australia and that the applicant could earn more money in Australia than she can in Tonga. However, her fears relating to the economic conditions in Tonga also do not relate to any of the reasons in s 5J(1)(a). As a result, these claims to do not give rise to persecution and do not attract Australia’s protection obligations.

29. Having considered the applicant’s claims individually and cumulatively, I find that the applicant does not have a well-founded fear of persecution and is not a refugee under s 5H(1). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection findings

30. Having found that the applicant is not a refugee, I will now consider whether she meets the criterion for complementary protection. That is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that she will suffer significant harm: s 36(2)(aa).

31. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

    Political opinion

32. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[4] I have found above that the applicant faces no real chance of suffering persecution for reasons of political opinion, now or in the foreseeable future. For the same reasons, I am not satisfied that there is a real risk that the applicant will suffer significant harm based on political opinion if she were to be removed from Australia to Tonga.

    Economic hardship and climate change

    [4] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

33. In relation to her claims of economic hardship and climate change related events, the applicant has not claimed, and there is no suggestion, that she will be subject to the death penalty, the arbitrary deprivation of life, or torture. In relation to the other forms of ‘significant harm’ I note that:

    ·The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

    ·Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].

34. I accept that the applicant may find it difficult to find employment if she were to be removed from Australia to Tonga. However, this is the result of general economic conditions in that country. It is not because of any conduct intended to inflict severe pain or suffering, or pain or suffering that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. Nor is it a result of an act or omission which causes, and is intended to cause, extreme humiliation on the applicant. Similarly, I find that the impact of climate change, volcanic eruptions and rising sea levels does not involve any act or omission by a perpetrator with the requisite intention to inflict the relevant ‘significant harm’ on the applicant.

35. I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there is a real risk she will suffer ‘significant harm.

36. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Conclusion

37. 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).

1. 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).

2. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Khanh Hoang
   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.

   …