2402159 (Refugee)

[2024] AATA 4334

2402159 (Refugee) [2024] AATA 4334 (8 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402159

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Siran Nyabally

DATE:8 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2024 at 10:59am

CATCHWORDS

REFUGEE – protection visa – Vanuatu – political opinion – support for the national government – land resumption – physical assault – economic conditions – fear of detention – fear of killing – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 423, 426, 499
Migration Regulations 1994, Schedule 2

CASES

GLD18 v MHA [2020] FCAFC 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

   APPLICATION FOR REVIEW

2. The applicant applied for the protection visa on 19 October 2023. The delegate refused to grant the protection visa on 23 January 2024.

3. The applicant applied for review of the delegate’s decision on 9 February 2024.

4. The applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments.

   CLAIMS AND EVIDENCE

   Before the Department

   Protection visa application

5. The applicant claims to be [an age]-year-old Vanuatu citizen who was born in [Village 1], Vanuatu. In her protection visa application the applicant claimed that she left Vanuatu to save herself from ‘the big group of community and local government.’ The applicant elaborated that, in summary:

   ·She experienced past harm in Vanuatu in the form of being forced to withdraw her support to the government. A local NGO questioned and harassed her.

   ·She sought help from the police, but instead of helping her, they tortured her because of her support to the national government.

   ·She attempted to move to another state of Vanuatu, but it was ‘most probably other is ruling party so it was hard to stay’ there.

   ·If she returns to Vanuatu, she will be imprisoned by the state government because she is seen as a challenger to the government and opposition party.

   ·The authorities will not protect her, as the authorities are harassing her and the people of her community.

   ·The applicant will not be able to relocate until the case is resolved and there is a compromise between both parties.   

6. In support of her protection visa application, the applicant also provided a statement dated 19 October 2023 (the Statement), in which she elaborated on the above claims. In that Statement, the applicant claimed that she had worked as a farmer in Port Vila and operated a small farming [business] with two business partners and her [Relative A]. Their land was ‘covered by [Mr A] for small [business 1].’ ‘They tried to cover by temple and converted on that name. Means they were stilled [sic]my land.’ The applicant and her partners opposed the [business 1] development, and in response, ‘they’ attacked the applicant and her [Relative A] and tried to kill them. The applicant approached the police to lodge a First Investigation Report (FIR), but local politicians supporting the opposition party pressured the applicant and her partners to withdraw the FIR. The applicant and her partners took the land dispute to court. The proceedings lasted around 6 to 8 years, but the applicant and her partners obtained a judgment in their favour. However, [Mr A] and a few politicians ‘start to attack on me and my [Relative A]’, and she was beaten by ‘some people.’

7. The applicant claimed to have returned to her ‘native village but was spotted there also.’

   Supporting documents

8. In addition to her protection visa application form and accompanying statement, the applicant provided the Department with a copy of the biodata page of her Vanuatu passport.

   Protection visa application interview

9. The Department did not invite the applicant to attend an interview.

   Delegate’s decision

10. The delegate refused to grant the visa on the basis that the applicant’s claims were generic and lacked any substantial detail. The delegate noted the applicant had not responded to a Department letter requesting more information about her claims for protection, issued pursuant to s 56 of the Act. The delegate assessed that the applicant’s failure to respond to the Department letter ‘suggests [her] situation is not as described’ in the protection visa application form.

11. The delegate found the applicant’s claims of being at risk of harm from the government of Vanuatu and politicians were not credible and rejected them in their entirety. As the applicant’s claims were not found credible, there was no substantive assessment of her claims under the refugee criteria. The delegate was also not satisfied that the applicant would suffer significant harm under the complementary protection criteria, without providing reasons for the finding.

12. Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.

    Before the Tribunal

13. On 9 February 2024, the applicant applied for review of the delegate’s decision and provided the Tribunal with the delegate’s notification letter and decision record.

    Dismissal and reinstatement

14. On 14 March 2024, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing.

15. On 14 May 2024, the Tribunal dismissed the application pursuant to s 426A(1A)(b) of the Act as the applicant did not appear at the scheduled hearing (dismissal decision). The applicant was notified of the dismissal decision the same day.

16. On 19 May 2024, the applicant wrote to the Tribunal by email to request that the application be reinstated. On 20 May 2024 the Tribunal reinstated the application for review pursuant to s 426A(1C)(a) of the Act.

    The hearing

17. As noted above, the applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments.

18. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.

    Post-hearing submissions and evidence

19. The applicant did not provide the Tribunal with any post-hearing submissions or evidence.

    CRITERIA FOR A PROTECTION VISA

20. 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.

21. 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.

22. 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).

23. 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.

24. 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

25. 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

26. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations.

27. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Country of nationality

28. The applicant has provided a copy of her passport from Vanuatu. She has consistently claimed to be from Vanuatu. There are no apparent concerns with the applicant’s identity.[1] The Tribunal is satisfied that the applicant is a citizen of Vanuatu.

    [1] The protection visa application erroneously lists the applicant’s name as ‘[Alias A]’. At the hearing the applicant confirmed that this was a mistake, and her name is, and has always been, [the applicant’s name].

29. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Vanuatu is her receiving country and has assessed her claims against that country.

    The applicant’s personal background

30. The applicant gave evidence that she was born and raised in [Village 1], [Province 1]. The applicant’s parents and [number] of her siblings live in Vanuatu, and her remaining [siblings] live in Australia. The applicant has [number] children, who all reside in Vanuatu. [Genders and ages specified.] The applicant’s children are currently being cared for by her parents and her neighbour/maid.  

31. The applicant attended school in [Village 1] until halfway through [grade], then was sent to Port Vila to find work. She worked as a shopkeeper for various employers between 2004 and 2023 before moving to Australia.

32. The Tribunal accepts the above matters to be true.

    New claims

33. At the hearing, the applicant informed the Tribunal that she no longer relied on the claims contained in her protection visa application. The applicant explained that she had come to Australia to earn money to pay for her children’s school fees, as she was a single mother and unable to support her family on the income she earned as a cashier in Vanuatu. The applicant travelled to Australia in February 2023 as part of the seasonal worker scheme. Upon arrival, she was told by a friend that she could apply for an ‘866 visa’. Her friend helped her complete the application but did not tell her what he had written.

34. When the applicant received the dismissal decision she asked the same friend what had happened. He told the applicant that her visa had been ‘cancelled’, and that he would apply for another visa for her if she paid him money. On 20 May 2024 this friend provided the applicant with a copy of her protection visa application, which was when she first learned of her claims for protection. The applicant was ‘shocked’, and had come to the hearing to tell the Tribunal the ‘truth’ about her case.

35. The applicant informed the Tribunal that none of the claims in the protection visa application were true, and that she was not seeking protection from on the basis of her political opinion and/or as a result of a land dispute. The applicant claimed that the real reason that she had applied for a visa was to earn money to build a house and to provide for her family in Vanuatu, and that she did not fear harm in Vanuatu.

36. Section 423A of the Act requires the Tribunal to draw an inference unfavorable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. 

37. The Tribunal is prepared to accept as reasonable the applicant’s explanation for why she did not present her real claims in her protection visa application and does not draw any unfavourable inferences. The Tribunal also finds that the applicant does not have a real chance or risk of serious or significant harm on the basis of her actual or implied political opinion, or on the basis of a land dispute, now or in the reasonably foreseeable future.

    The applicant’s claims for protection

38. The Tribunal asked the applicant why she feared returning to Vanuatu. The applicant replied that she did not fear harm. She had experienced difficulty in Vanuatu in the past due to the failed relationships with the fathers of her children, but did not fear harm on the basis of these past relationships as the men were no longer part of her life. She had had disagreements with her parents in the past as they disapproved of her having 4 children with 4 different fathers, but she did not fear harm from her parents, who have since agreed to care for her children while she lived and worked in Australia. The applicant wished to remain in Australia to work and to provide for her family financially, not because she feared harm in her home country.

39. The Tribunal informed the applicant that when considering whether she was a refugee, it had to determine whether there was a real chance of serious harm to her for reasons of her race, religion, nationality, membership of a PSG and/or political opinion; and when considering whether she was owed complementary protection, it had to consider whether any risk of serious harm to her was the result of an intentional or deliberate act or omission by a third person. The Tribunal observed that while the applicant faced challenges in earning a sufficient income in Vanuatu to support her family, it appeared that these challenges were not intentionally inflicted for reason of her race, religion, nationality, membership of a PSG and/or political opinion, nor were they the result of an intentional act or omission by a third party. The applicant agreed.

    FINDINGS

40. The Tribunal found the applicant to be a credible witness who was forthcoming in her disclosure of the incorrect information in her visa application and the real reason why she wanted to remain in Australia.

41. The Tribunal accepts on the basis of the applicant’s oral evidence that the purpose of her travel to Australia was to make money to build a house and to provide for her family. The Tribunal also accepts the applicant’s evidence that she does not fear harm in Vanuatu, but is concerned about the cost of living and her capacity to earn sufficient money to support herself and her family in Vanuatu.

    Is the applicant a refugee?

42. As noted above, the definition of ‘well-founded fear of persecution’ requires, relevantly, that the person claiming protection must fear being persecuted for reasons of race, religion, nationality, political opinion or because he or she is a member of a PSG: s 5J(1)(a).

43. As was discussed with the applicant at the hearing, the Tribunal does not accept that the financial issues the applicant experienced and/or may experience are inflicted upon her for one or more of the 5 reasons enumerated in s 5J(1) of the Act. As such, the Tribunal is not satisfied that the applicant has a ‘well-founded fear of persecution’ on the basis of her financial situation in Vanuatu, as required for the purposes of the definition of a ‘refugee’ contained in s 5H of the Act.

44. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

    Is the applicant owed complementary protection?

45. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether she is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.

46. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) by reason of the financial issues she experienced and/or may experience in Vanuatu, the Tribunal has considered whether 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 she will suffer significant harm. ‘Significant harm’ is exclusively defined in s 36(2A) as follows:

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

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

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

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

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

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

47. At the hearing, the Tribunal explained to the applicant that complementary protection obligations are concerned with intentional acts or omissions by third persons,[2] and observed that the financial issues she experienced did not appear to be the result of an intentional or deliberate act or omission. The applicant agreed.

    [2] GLD18 v MHA [2020] FCAFC 2.

48. The Tribunal accepts that the applicant is concerned about the cost of living in Vanuatu, and in particular her capacity to earn sufficient money to support herself and her family. However, the applicant does not suggest that any financial issues she might encounter would arise from the intentional or deliberate act or omission of a third person or persons such as could constitute arbitrary deprivation of life, cruel or inhuman treatment or punishment, degrading treatment or punishment or torture. Nor is it suggested that the death penalty will be carried out upon her.

49. For these reasons the Tribunal does not accept that any financial issues the applicant experienced and/or may experience would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A).

50. Accordingly, the Tribunal does not accept that there is a real risk that she will face significant harm as defined in s 36(2A) of the Act.

    CONCLUSION

1. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

2. 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).

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.

   Siran Nyabally
   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.

   …