2401100 (Refugee)

[2024] AATA 3284

2401100 (Refugee) [2024] AATA 3284 (9 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401100

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Don Smyth

DATE:9 May 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 09 May 2024 at 3:16pm

CATCHWORDS

REFUGEE – Protection Visa – Vanuatu – failed to attend hearing – economic hardship in Vanuatu did not relate to any of the reasons enumerated in s 5J – applicant has not provided sufficient relevant information to support his claims – having a debt with the ‘ex-employee’– not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 426, 441, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437

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

BACKGROUND

1. The applicant claims to be a citizen of Vanuatu and has provided a copy of the bio data page of his Republic of Vanuatu passport. I accept that he is a national of Vanuatu.

2. According to information provided in his protection visa application, the applicant was born in [a province] in [year].

3. The applicant applied for a protection visa on 31 October 2023. On 24 January 2024, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.

4. On 13 March 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 5 April 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. The Tribunal made two attempts to call the applicant on the morning of 5 April 2024. On the second attempt, the applicant answered the telephone. He indicated that he could not attend the hearing as he was in Melbourne. The applicant was asked to provide updated contact information. Noting that the applicant had indicated that he was in Melbourne, I agreed to postpone the hearing so that it could be conducted by video via MS Teams to the Tribunal’s Registry in Melbourne. The applicant was invited to attend the hearing at the Tribunal’s Melbourne Registry on 22 April 2024. A Tribunal officer also attempted to contact the applicant by telephone on 16 April 2024 and again on 17 April 2024 to inquire as to whether the applicant had changed any contact details. On both occasions there was no answer and the officer left a message for the applicant to return the call. The Tribunal did not receive any subsequent contact from the applicant.

6. The applicant did not appear before the Tribunal on 22 April 2024 and did not provide any explanation for his non-appearance. However, I note that, due to administrative error, the hearing invitation in relation to the postponed hearing on 22 April 2024 was issued on a template relating to the resumption of an adjourned hearing (in circumstances where the hearing had not in fact commenced) and, as such, did not include a statement of the effect of s 426A.

7. In these circumstances, I considered it appropriate to issue the applicant with a further invitation to appear before the Tribunal to give evidence and present arguments at a hearing. On 22 April 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 8 May 2024. Again, the hearing was scheduled to be conducted by video conference to the Tribunal’s Registry in Melbourne. The invitation stated that, if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. The Tribunal also sent the applicant SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

8. The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. A Tribunal officer attempted to contact the applicant by telephone on the afternoon of 8 May 2024, without success.  Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing scheduled for 8 May 2024. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In all the circumstances, I consider that it is appropriate to exercise my discretion under s 426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

   SUMMARY OF CLAIMS AND EVIDENCE

9. The applicant provided information in relation to his schooling, indicating that he had completed high school in August 2005. He indicated that he had never been employed. With regard to how he had financially According to information provided in his protection visa application, the applicant lived in [City 1] from [birth] to January 2022. He described his ethnic group as ‘Vanuatu’ and his religion as Christian. The applicant indicated that he had married in June 2016.

10. supported himself, he referred to ‘Self-Funds’.

11. The applicant indicated that he had departed Vanuatu on [date] January 2022, arriving in Australia on the same date. He indicated that he had a subclass 403 visa.

12. The applicant made written claims in his protection visa application. In summary, he stated that he and six friends had come to Australia on subclass 403 visas. His visa was granted on 29 June 2021 under the Pacific Australia Labour Mobility (PALM) scheme. He stated that he and six friends had been working with [Company 1]. He referred to the nature of the work. The applicant stated that, after the contract agreement ended in 2022, he and many friends could not return to Vanuatu as they still had a debt with ‘the ex-employee [sic]’ and needed to seek asylum as they were still afraid they would face threats in Vanuatu because people in Vanuatu are ‘ex-employed’. The applicant referred to poverty in Vanuatu, ‘the increasing number of out-of-school youth unemployment’, and lack of access to training and job opportunities, especially on the remote island.

13. With regard to why he had not tried to seek help, the applicant stated that he and his family did not want to have any more trouble with them. He stated that he was worried about his family’s safety and stated that they ‘escaped by staying longer in Australia, at least, to avoid facing the members of the ex-employed’. He referred to needing to apply for a protection visa in Australia. He stated that, if they returned to Vanuatu, they feared ‘the members of my ex-employer because they are so cruel’. He stated that the laws of Vanuatu did not take care of ordinary people like them.

14. The applicant indicated that he believed he would be harmed or mistreated if he returned, stating, ‘We believe that they will harm the same I experienced when I live in VANUATU.’ He indicated that he did not think the authorities could and would protect him, stating, ‘For people in poverty in Vanuatu the traditional system of the social class of VANUATU consisting of authorities could not or would. people of this class will be ignored and unfair.’ With regard to relocation, the applicant stated that ‘we want to take the time to consider it carefully because is the biggest matter in my life’.

15. The applicant provided a written statement dated 29 October 2023. This included the following:

    I and another 6 friends we came to Australia with International Relations (subclass 403) visa, my visa was granted in 2022 under Pacific Australia Labour Mobility Scheme

    We have been working with [Company 1] worker on a [farm] [doing specified work] for a period of time.

    We have been oppressed with a lower rate of wages than the standard that and we should have received from the employer.

    Before I lived in my country my family was very poor, I came to Australia to escape poverty and all we are sell our labor because the most valuable possession in life and hoped our family would get a better life with our support.

    Base on our daily as normal life we living in a very hard financial hardship, when we have opportunity to travel to be a farm worker in Australia we hence to take that opportunity with hope our family will getting better.

    Under an unfair agreement of the contract between my employer and our worker, we are unable to continue working with them anymore

    Since we have been away from them, The employer in my country keeps intimidating our family because being an employer there lost benefits enormously.

    And said to our family in VANUATU, that once I we have return to my country, they will give us a death.

    We were very scared and fear to return to VANUATU my homeland, We made a decision, we needed to avoid the biggest problem that might happen in our life because the family needed us to look after them.

    We are the same fate seeking asylum we are still afraid we will face threats in VANUATU based on ex-employers upset with us poor people in VANUATU we have an increasing number of out-of-school youth unemployment, and we lack access to training and job opportunities, especially in the remote island as a our residency in VANUATU

    We would like to apply for a protection visa to stay here lawful and legally, at least our life's safe for all our family in VANUATU.

16. The applicant stated that, according to Australian immigration law, his situation was suitable for this visa and referred to harmful incidents experienced in Vanuatu.

17. On 24 January 2024, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate found that the applicant’s claim with respect to economic hardship in Vanuatu did not relate to any of the reasons enumerated in s 5J(1)(a). The delegate was satisfied that there were effective protection measures, as defined in s5LA of the Act, available to the applicant in Vanuatu and that, therefore, he did not have a well-founded fear of persecution under s 5J(2). The delegate was not satisfied that the applicant was a refugee as defined in s 5H(1) of the Act. With regard to the complementary protection criterion, the delegate found that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they would suffer significant harm as provided for in s 36(2B)(b). The delegate was not satisfied that there was a real risk that the applicant would suffer significant harm. The delegate was not satisfied that the economic hardship the applicant claimed he would face amounted to ‘significant harm’ under s 36(2A) of the Act. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vanuatu, there was a real risk the applicant would suffer significant harm.

18. The applicant attached a copy of the delegate’s decision to the review application. The applicant submitted a cover letter with his review application in which he stated, ‘I have reason I need to apply to The Tribunal as the biggest problem in my life in VANUATU still on I does not feel safe,can not have normal life in VANUATU.’

    CRITERIA FOR A PROTECTION VISA

19. 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.

20. 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.

21. 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).

22. 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.

23. 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

24. 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

25. 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 itself 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. 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 & Anor (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70, Randhawa v MILGEA (1994) 52 FCR 437 at 451).

26. The applicant’s claims are vague and lacking in detail in a number of significant respects.

27. With respect to the claims related to his employment, the applicant has not provided detail, for instance, with respect to the employment agreement or contract with the employer, or the manner in which it was unfair. He has provided limited detail with respect to his employment under the PALM scheme and has not detailed, for instance, the wages that he was paid. While he referred to still having a debt with the ‘ex-employee’, he did not detail matters such as the nature or amount of the debt or how it arose. While he referred to the employer in his country intimidating his family and to threats, he did not provide detail such as when and in what circumstances such intimidation or threats occurred. He did not detail why he would face threats in Vanuatu because people are ‘ex-employed’. There is a lack of detail as to how any loss might have been incurred by an employer. The applicant referred to ex-employers being ‘upset with us poor people’ but did not provide detail in this regard. While he appeared to refer to harm experienced in Vanuatu and referred to harmful incidents experienced in Vanuatu and described the members of his ‘ex-employer’ as ‘so cruel’, he did not provide detail of any past incidents of harm. On the basis of the very limited evidence before me, I am not satisfied that the applicant, or any member of his family, has in any way experienced harm, threats or intimidation from (or come to the adverse attention of) an employer, former employer, the ‘ex-employed’ or ‘ex-employee’, or anyone else.

28. The applicant has referred to matters related to economic circumstances such as his family being very poor, coming to Australia to escape poverty and living in financial hardship. However, the applicant has provided very limited detail in relation to his circumstances in Vanuatu. While he has referred to matters such as poverty, the increasing number of out-of-school youth unemployment, and lack of access to training and job opportunities (especially on the remote island), there is a lack of detail as to how such matters might have affected him or how they might be relevant to his circumstances in Vanuatu. There is a lack of detail as to how such matters might give rise to a real chance that he would be persecuted for any of the reasons enumerated in s 5J(1)(a) or to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.

29. While the applicant has claimed that the laws of Vanuatu do not take care of ‘ordinary people like us’, he has not detailed the basis for this belief or in what respect he believes that the laws fail to take care of ordinary people. The applicant has referred to people in poverty in Vanuatu. However, there is a lack of detail as to why ‘people of this class’ would be ignored or treated unfairly, or why the authorities could not or would not provide protection.

30. I have considered all of the applicant’s claims. However, on the basis of the very limited evidence before me, I am not satisfied, having regard to the reasonably foreseeable future, that there is a real chance that the applicant would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that he is a refugee as defined in s 5H(1). Accordingly, I am 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), I have considered the alternative criterion in s 36(2)(aa). However, on the very limited evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.

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

3. 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

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

   Don Smyth
   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.

   …