2404803 (Refugee)

[2024] AATA 4302

2404803 (Refugee) [2024] AATA 4302 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Malintha Prakash De Mel

CASE NUMBER:  2404803

COUNTRY OF REFERENCE:                   Indonesia

MEMBER:Paul Noonan

DATE:19 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2024 at 12:14pm

CATCHWORDS

REFUGEE – Protection Visa – Indonesia – race – Chinese ethnicity – false accusation of theft against him – debt owed by Mr A – applicant has manufactured dispute with respect to a girl – a low risk of societal violence against ethnic Chinese Indonesians – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 22 February 2024 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 Indonesia, applied for the visa on 25 January 2023. The delegate refused to grant the visa on the basis that the applicant’s claims were not credible.

3. A separate appeal lodged by Mr [A] and [Ms B] was heard as a combined hearing with this matter (Tribunal case numbers 1820510 and 1820508). Separate reasons have been issued with respect to those appeals. This matter was combined with the above matters at [Mr C]’s representative’s request on the basis that [Mr C] is the underage son of [Mr A] and his claims, in part, are related to the claims made by [Mr A].

4. The applicant appeared before the Tribunal on 8 May 2024 and in a continuation of the first hearing on 13 June 2024 to give evidence and present arguments. In the first hearing the Tribunal received oral evidence from the applicant and witnesses as follows: [Mr A] (the biological father of the applicant), [Ms B] (the stepmother of the applicant), Ms [name] ([Mr A]’s child), Mr [name] (ex-employee of the [Mr A]), Ms [name] (the [Ms B]’s child), Ms [D] ([Ms B]’s child), Mr [name] (ex-employee of [Mr A]), Mr [name] (ex-employee of [Mr A]), and Mr [name] (the husband of Ms [D]).

5. In the second hearing [Mr A], [Ms B] and the applicant appeared together with their representative.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

7. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

8. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

9. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

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

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

    Mandatory considerations

13. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Department interview and decision

14. The applicant was not offered an interview by the Department. He supplied the Tribunal with a copy of the delegate’s decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

    Country of nationality

16. The delegate noted that the applicant had presented fraudulent passport and family certificates to the Department. The delegate accepted that these documents had been altered by the applicant’s stepfather in Indonesia. The applicant informed the delegate that this had been done to facilitate his trip to Australia to join his biological father [Mr A]. The delegate accepted that the Indonesian passport subsequently presented by the applicant was genuine. 

17. The delegate was satisfied that the applicant’s country of nationality is Indonesia, and the Tribunal is also satisfied that this is the case, on the basis of the biodata with respect to his original Indonesian passport, a copy of which is retained on the Department’s systems and file, and accordingly has assessed his claims with respect to Indonesia as the country of reference or receiving country for the purposes of this appeal.

    The applicant’s personal background and original claims

18. The applicant was born in [year]. In his written application for protection lodged with the Department he stated that he was born on [an island], Indonesia. He listed [Mr A] as his biological father and his legal guardian. He listed [Ms B] as his stepparent. He listed his stepfather as Mr [E] and stated that he lives in Indonesia. He listed his biological mother as Ms [name] and stated that she lives in Indonesia. He disclosed that he received assistance in completing the form by his authorised representative, who also attended the Tribunal hearing. He stated that he follows the Catholic religion. He stated that his ethnicity is Indonesian. He departed from Bali, Indonesia on[date] November 2022 and arrived in Australia on [date] November 2022. He is now attending high school in Australia.

19. The Tribunal accepts the above to be true.

20. In respect to the applicant’s claims for protection he attached a statement to his claim form which set out his reasons for seeking protection in Australia. He stated that he was close to a girl named [Ms F] at high school. Her parents arranged for her to marry a person named [name], whom he stated was commonly known as [Mr G]. [Mr G] became jealous of the applicant’s friendship with [Ms F] and challenged him to a fight. The applicant went to fight with [Mr G] after school, but [Mr G] brought 5 other people armed with knives and they attacked him. He fled to the nearest bus stop and went home. He told his mother, and reported the attack to his teacher, but no action was taken. After this incident [Mr G] bullied him at school and used racial slurs against him. Later his friend told him that [Mr G]’s parents had ‘ordered mass organisations’ to find him. He became scared and left school. He fears returning to Indonesia because he fears harm from [Mr G] and [Mr G]’s parents and more generally because of discrimination based upon his Chinese ethnicity. He also fears returning because of the debt owed by [Mr A] and because of a false accusation of theft against him made by his [friend’s] mother and adverse interest from the Indonesian authorities.  

    The Tribunal’s considerations

21. The Tribunal has found in case number 1820510 that [Mr A]’s claim to owe a large debt to a man associated with criminal gangs and to fear harm as a result of this, should he be required to return to Indonesia, is not credible. The Tribunal found that [Mr A] does not owe this debt and his fear of persecution on this basis is therefore not well-founded. The applicant did not make any submission when this evidence was discussed with [Mr A] and before the applicant. It follows that, for the same reasons, the Tribunal is satisfied that there is no real chance of serious harm to the applicant for reason of his father, [Mr A], owing money and his fear of persecution for this reason is also not well-founded.

22. With respect to the applicant’s claim to fear harm from the Indonesian authorities, the applicant resiled from this claim and stated that he had no reason to fear persecution from the authorities. The Tribunal finds that there is no real chance of serious harm to the applicant for reason of adverse interest from the authorities for reason of false accusations of theft or any other reason should he be required to return to Indonesia. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for these reasons claimed if he returns to Indonesia, either now or in the reasonably foreseeable future.

23. With respect to his claim to fear harm from a fellow school student named [Mr G] the Tribunal discussed with the applicant that this appeared to be a personal disagreement or fight with respect to a friendship. The applicant claimed that this disagreement had escalated into a serious incident involving a claimed knife attack by [Mr G] and 5 others related to this claimed friendship and the subsequent engagement by [Mr G]’s parents of an organisation to find him.

24. Overall, the Tribunal finds the applicant’s account of this claimed harm and the subsequent claimed escalation by [Mr G]’s parents to be highly implausible for the following reasons:

    ·Firstly, if the applicant was attacked by 6 assailants with knives in a small field near school as claimed, as put to the applicant, it is highly implausible that he would have simply been able to escape uninjured and proceed to catch a local bus home despite being chased by the assailants. The applicant unconvincingly responded that he hid in a gap in a nearby wall and then caught the bus. In his original claim he simply stated that he managed to flee to the nearest bus stop. These shifting explanations of how he escaped a planned assault from 6 teenagers armed with knives and without injury is implausible. It is simply not possible for a single unarmed person to escape such a coordinated attack from so many assailants, undertaken with the intent of inflicting serious harm through the use of knives, without significant intervention from third persons or the authorities. The Tribunal finds the applicant’s further response that they pulled knives on him but did not point them at him, so he was simply able to escape, to be highly unconvincing given the stated intent was to meet and fight and he had originally claimed they had chased him when he fled the scene.

    ·Secondly, as discussed at hearing, the Tribunal would expect that such a serious attempted incident would have resulted in, at the minimum, a police report. The Tribunal considers the applicant’s response that he did not report this serious incident because [Mr G] has connections, which he did not elaborate upon, to be a weak explanation for not doing so. Taken at face value this was a case of attempted serious harm upon a minor and the Tribunal considers that a fear of further harm of this nature would drive a report to the police. To accept that the applicant’s mother would simply tell him to report the matter to his teachers and take no further action is simply implausible given the claimed nature of the attack.

    ·Thirdly, the Tribunal considers the applicant’s explanation that he reported a knife attack to his teacher but nothing was done and no report was issued to be highly implausible. This is a serious incident of potential serious harm of a school student by other school students, and the Tribunal does not accept as reasonably plausible that no tangible action would be taken by the school in response.

    ·Fourthly, the Tribunal does not accept as reasonably plausible that the applicant would then simply resume attending school for some time and suffer low level bullying from the same assailants, without any further escalation, after a knife attack had just been perpetrated.

25. Overall, the Tribunal considers that it is far more plausible that the applicant has manufactured this dispute with respect to a girl, and presented some general photos of him and other school friends posing for the camera as his only evidence of any such friendship or relationship with a girl, for the sole purpose of strengthening his claims for protection. Given the significant credibility concerns set out above with respect to this claim the Tribunal rejects the applicant’s claim to have ever been attacked by a student named [Mr G] or his accomplices or to have ever been of any adverse interest in any way to a person named [Mr G] or gangs or other people associated with [Mr G]. It follows that the Tribunal rejects the applicant’s associated, highly vague claim that [Mr G]’s parents engaged an organisation to find him causing him to only then leave school. The Tribunal finds that the applicant is not a witness of truth with respect to these claims and rejects them entirely. It follows that the Tribunal is satisfied that there is no real chance of serious harm to the applicant for this reason should he be required to return to Indonesia. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for the reasons claimed if he returns to Indonesia, either now or in the reasonably foreseeable future.

26. With respect to the applicant’s Chinese Indonesian ethnicity, the applicant submitted that [Mr A]’s factory may have been burnt for reason of personal animosity due to his ethnicity. The Tribunal notes that the reason for the fire was the subject of speculation from both [Mr A] and his witnesses. The Tribunal places no weight on the evidence of the fire at [Mr A]’s factory, with respect to the claim that it may have been linked to his ethnicity, due to the entirely speculative nature of the claim and with regard to the shifting and inconsistent claims with respect to this event presented by [Mr A]. The applicant did not make any submission when this evidence was discussed with [Mr A] and before the applicant.

27. The Tribunal put to the applicant that for the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.

28. The Tribunal noted that DFAT assesses that there is a low risk of societal violence and a moderate risk of low-level societal discrimination against ethnic Chinese in Indonesia. DFAT is not aware of official discrimination against ethnically Chinese Indonesians. Violence has occurred in the past but is not an everyday experience for Chinese Indonesians. Chinese Indonesians with wealth are less likely to experience any form of discrimination.[1] The applicant stated that he had suffered some name calling at school.  

    [1] DFAT Country Information Report, Indonesia,24 July 2023, p. 11–12

29. In assessing the real chance of serious harm the country information, as set out to the applicant, reflects that there is a low risk of societal violence against ethnic Chinese Indonesians and a moderate risk of low-level societal discrimination. However, the applicant has had access to financial resources sufficient to enable him to move to Australia as a minor. He also enjoys close financial support from his family. This reflects that he has considerable financial resources available to him and DFAT assesses that ethnically Chinese Indonesians with access to financial resources are less likely to experience any form of discrimination.

30. The applicant made no further submission to the Tribunal with respect to his ethnicity.

31. After weighing up the country information and the applicant’s evidence and profile as discussed, the Tribunal concludes that the weight of the evidence reflects that there is no real chance of serious harm to the applicant for reason of his Indonesian Chinese ethnicity should he be required to return to Indonesia. It follows that the Tribunal does not accept the applicant has a well-founded fear of persecution for this reason claimed if he returns to Indonesia, either now or in the reasonably foreseeable future.

    Complementary protection

32. In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.

33. 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.[2] For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a necessary and foreseeable consequence of being removed from Australia and returned to Indonesia.

    [2] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]

    Overall conclusions

34. 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 any of the criteria in s 36(2).

   DECISION

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

   Paul Noonan
   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.

   …