2428461 (Refugee) - [2025] ARTA 700

2428461 (REFUGEE) [2025] ARTA 700 (20 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Ryan McCarthy
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2428461
Tribunal:General Member P Millar
Date: 20 January 2025

Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the first named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicant meets s 36(2)(a) of the Migration Act.

Statement made on 20 January 2025 at 6:15pm
CATCHWORDS
REFUGEE – protection visa – Haiti – particular social group – single women – victim of domestic violence – gender-based violence – criminal gangs – access to health care – third country protection – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367A, 499
Migration Regulations 1994, Schedule 2
CASES
FCS17 v MHA (2020) 276 FCR 644
MIMA v Khawar (2002) 210 CLR 1
MIMAC v SZRHU (2013) 215 FCR 35
MZAIC v MIBP [2016] FCAFC 25
Sandor v MICMA [2023] FCA 424
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 7 May 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). The applicants who claim to be nationals of Haiti, applied for the visas on 11 November 2016. The first named applicant (“the applicant”) appeared before the Tribunal on 20 December 2024 to give evidence and present arguments for herself and her [age] year old daughter the second named applicant (“the applicant’s daughter”). The hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. The applicants were represented in relation to the review. The representative appeared at the hearing.
On 14 October 2024, the AAT became the Administrative Review Tribunal (“the Tribunal”). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (“the Transitional Act”), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Criteria for protection visa
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.
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.
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).
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.
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
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.
BACKGROUND
The applicant is [an age] year old woman from Haiti. She arrived in Australia in October 2016 with a male (referred to as “[Partner A]”) from [Country 1] with whom she was in a de facto relationship. The couple came to Australia from [Country 2] where they had both been living and where they met each other. The couple applied for a protection visa in November 2016 both making claims for protection and including the applicant's daughter. This protection visa application was based on claims made by [Partner A] as to why he would suffer harm on return to [Country 2] or [Country 1].
As stated above, the delegate refused the application and [Partner A] lodged an application for review with the Tribunal on 21 May 2019. By letter dated 26 October 2021 the representative for [Partner A] advised that the applicant and the applicant’s daughter had mistakenly been omitted from the review application form. The representative confirmed that they were intended to be included as applicants for review having been subject to the refusal by the delegate. The representative provided an amended review application form including the applicant and the applicant's daughter and by letter dated 27 October 2021 the Tribunal acknowledged receipt of that amended application.
By letter dated 24 July 2024 the applicant advised the Tribunal that her relationship with [Partner A] had ended in May 2024. The applicant requested that her application for review be heard and determined separately from the application for review by [Partner A]. By letter dated 27 August 2024 the representative requested that the applicant's daughter be added as a party to her separate review application. By letter dated 19 September 2024 the Tribunal advised the representative that based on documents provided demonstrating that the applicant was the primary carer for the applicant's daughter, she had been added as an applicant to this separate review application.
CONSIDERATION OF CLAIMS AND EVIDENCE
To the Tribunal, at the hearing, the applicant gave the following evidence on which the protection claims of the applicant and the applicant's daughter are based. The applicant was born in [Commune 1], Haiti in [specified year]. The applicant's father worked as a farmer and her mother worked as a seamstress. The family were members of the [Denomination 1] church. The applicant had [specified family members]. The applicant attended school in [Commune 1] until [year] when the family moved to live in [Town 1], an area in Port-au-Prince. Her parents chose to live there because her mother believed they would be better off financially.
The applicant continued to attend school in that new location for one year. She stopped attending school because she wanted to operate a [business 1]. The applicant was [age] years old at the time and commenced operating a [business 1] in the family home. In 2010 an earthquake occurred in Haiti in which the applicant's family home was destroyed. At the time the earthquake occurred, the applicant was helping in a church service away from the home. From the earthquake and the destruction of the family home, the applicant’s parents died as well as [specified siblings]. [One sibling] who survived now lives in [Country 2].
The applicant was offered a place to live by a male “[Mr A]” in his home. The applicant knew [Mr A] prior to the earthquake as [Mr A] knew the applicant's parents. The applicant entered into a relationship with this man who supported her financially. The applicant had to stay in the house when [Mr A] went outside and she did not know what he was doing. [Mr A] was abusive and violent in his behaviour toward the applicant. For this, the applicant approached the police who, in June 2011, arrested [Mr A] and held him in prison. The applicant then went to live in other premises owned by someone she knew who provided her with a room in which to stay.
Approximately one month after the police arrested and imprisoned [Mr A], a neighbour told her that [Mr A] had bribed the authorities and was able to leave the prison. The applicant lived in fear that [Mr A] would try and harm her because she had reported him to the police. A person she knew told her that that person had been approached by someone asking where the applicant was living. From what she was told, the applicant understood that the person who made that inquiry was doing that for [Mr A] who was paying that person. In fear for her safety the applicant decided to leave Haiti.
At that time, the applicant received advice and assistance from her brother and an uncle who were in [Country 3]. In this respect, they advised her to leave Haiti and go to [Country 2]. With the assistance of the uncle, the applicant left Haiti later that year arriving in [Country 2] around December 2011. As stated above, the applicant feared suffering harm from [Mr A]. She added that, in terms of being the victim of crime in Haiti, prior to the earthquake, she had been robbed at knifepoint on one occasion.
After leaving Haiti and arriving in [Country 2] the applicant maintained contact with a friend in Haiti through a social media website and who she met through that website. She did not have contact with any family member except the uncle who helped her to leave Haiti. When asked if, after her arrival in [Country 2], anyone told her about the risk of returning to Haiti, the applicant said that she did not speak to many people from Haiti. Rather, she would observe what was happening in Haiti through the news. Some time ago she ceased contact with the person in Haiti due to looking after her children being seen as more important to her.
The applicant's brother left Haiti before the applicant. She did not know the exact reason why he left and was living in [Country 3]. She thought that he would have had trouble finding work in Haiti as everything was destroyed after the earthquake in 2010. On arrival in [Country 2], the applicant lived with an uncle until 2013 when she entered into a de facto relationship with her former partner [Partner A]. In 2016 the applicant and [Partner A] came to Australia because [Partner A] wished to visit. The applicant and [Partner A] have [number] children from their relationship including the applicant's daughter who were all born in Australia.
The Tribunal asked the applicant if she and [Partner A] had difficulties in [Country 2]. The applicant said that [Partner A] operated a business related to [service 1]. On one occasion people came into the premises threatening everyone present and stealing items including the applicant's handbag containing various documents. They reported the matter to the police but no action was taken. In addition [Partner A] had issues related to his political affiliations for which he suffered harm in [Country 1] but also in [Country 2]. The applicant mentioned another occasion on which she was assaulted while walking on the street in [Country 2] with people nearby not offering assistance.
Although they had those problems, when they came to Australia their intention was to return to [Country 2]. However, at that time, [Partner A] then told the applicant about all of the problems he had related to his political activities for which he suffered harm. The applicant did not know about all of the incidents that happened in that respect; she only knew what [Mr A] told her had happened. The Tribunal put to the applicant that the protection visa applications made by her and [Partner A] did not contain specific claims from the applicant as to why she was seeking protection. The protection applications were all based on what [Partner A] feared would happen to him related to his political affiliations.
In response, the applicant said that the entire process of applying for protection, including completing the application forms, were undertaken by [Partner A]. The applicant said that in that process [Partner A] dealt with a solicitor whom she only met on the day the application was made; a solicitor that she did not know. The applicant did not know how to put her own claims through the application and [Partner A] was in complete control of the process and the content of the applications. That included the delegate interviewing [Partner A] about his specific protection claims; the delegate’s findings on those claims being the subject of the decision to refuse the applications.
The Tribunal drew the applicant's attention to certain contents of the protection visa application that appeared to be inconsistent with her evidence at the hearing. In her application she said that she completed high school in [year] in [Commune 1]. In response, the applicant said that was incorrect as she and her family stopped living in that location in [year]. The Tribunal put to the applicant that she named her parents in that part of the application form where required to specify the details of family members. At that part of the form, it specified that if the family member was not living the applicant was to write “deceased”.
The Tribunal put to the applicant that she did not state her parents were deceased at that part of the form. The applicant said that her parents died from the earthquake in 2010. The applicant then said that there was a person helping them fill in the forms but, again, [Partner A] was in control of that process. The person helping to fill in the forms did not ask whether or not her parents were deceased. Also, when the application was made they had recently arrived in Australia and were not speaking English.
The applicant said that in May 2024 she separated from [Partner A]. They had [number] children and [Partner A] wanted the couple to have more. The applicant said that she had a genetic problem making it difficult for her when pregnant. This led to them arguing about having more children and [Partner A] leaving the home where they lived. He remains in contact by telephone “every now and then”. [Partner A] would say that he wanted to come and visit but he did not, making the applicant the sole caregiver for their children.
The applicant then gave evidence about the health of the applicant’s daughter. The applicant said that her daughter needs regular checkups following [specified] surgery but does not require any actual or regular treatment. In terms of intellectual development, the applicant said that her daughter was a little behind at school but was getting better. The Tribunal asked the applicant if she considered her daughter to have a disability. In response, the applicant said “not so much”; just that she was behind at school because she did not understand English and they would speak Portuguese in the family.
The Tribunal put to the applicant that in 2021, with the assassination of the president, conditions in Haiti changed.[1] In response, the applicant said that those changes greatly affected her, particularly the assassination. She understood the country was destroyed but she has had no contact with anyone in Haiti. The Tribunal asked the applicant what she was afraid would happen to her and her daughter on return to Haiti. In response, the applicant said that she could see what was happening in Haiti and that would be bad for her and her daughter.
[1] See the country information discussed further below in this decision.
She said that nothing functioned properly in the governance of the country including hospitals and schools. People live as though they were in jail because it was too dangerous to go out. The country was like a war zone and her daughter would not receive education or health care. When asked what else she wished to say in support of her protection claims, the applicant said that in Australia she had the opportunity to guarantee her daughter being alive, but in Haiti with her [health] problems her daughter would not be alive.
The applicant recalled that in Haiti she saw her mother lose a child because checks are not done after the child is born. Therefore whether or not a child has problems is not known. Children are not looked after. Bandits harm children who are 13 or 14 years old. The applicant then repeated her evidence that she did not have input into the original protection visa applications. The applicant said that she was fearful and was taking medication because she imagined all the bad things that were happening. The applicant then referred to the new president of Haiti saying that seven million people do not have enough to eat nor water to drink.
With respect to the application for review not naming the applicant and the applicant's daughter, the applicant said that it was her intention that they would be included in that application. The applicant said that when that form was submitted she was not aware that she and her daughter had been omitted from it. She only found out when a lawyer told her that she and her daughter had not been named through the lawyer's mistake.
The applicant’s evidence to the Tribunal also includes written statements dated 23 September 2024 and 22 November 2024. In her written statements the applicant gave an account of her background and experiences in Haiti and [Country 2] that were similar to the evidence she gave to the Tribunal as recorded above. In addition the applicant said that she was afraid to return to Haiti for the further reason that she could be seriously harmed by her former partner [Mr A] who she understood had been looking for her once he came out of jail in 2011. In her written statements, the applicant put forward similar claims to those made at the Tribunal hearing about what she is afraid will happen to her and her daughter if returned to Haiti.
In addition, the representative provided a statement dated 4 November 2024 from the applicant's uncle who lives in [Country 2]. In this statement, the applicant's uncle made the following claims. The applicant's parents and [number] of her siblings died in the earthquake in Haiti in 2010. The applicant then entered a relationship with [Mr A] in which she suffered abuse and violence and for which he was eventually arrested. [Mr A] was able to get out of prison and the applicant sought her uncle’s assistance to leave Haiti. This was because her neighbours had warned her that strange people were asking about her (as the Tribunal understands it, on behalf of [Mr A]).

According to the applicant’s uncle the applicant's life was in danger in Haiti and he managed to have her come to [Country 3] in November 2011 where he was living at that time. They were not safe there as [Mr A] could easily have entered that country without a visa and they decided to go to [Country 2] where they would be safer. The applicant lived with her uncle in the same house until 2013 when the applicant commenced her relationship with [Partner A]. The uncle understood that their relationship had ended and he claimed that if the applicant returned to Haiti she and her daughter would be in danger in view of the situation in that country.
Attached to that statement was an identity card containing the name and photograph of the applicant's uncle and which appeared to be a residence permit issued by the government in [Country 2]. Also attached was a similar identity card issued to the applicant. By email dated 12 December 2024 the representative provided an English translation of the applicant's identity card. According to the translation, the applicant held a “Foreigners Identity Card”, with a “Classification” of “Permanent”, issued [in] 2014 and valid until [2021]. The document stated “Visa granted by the National Immigration Council”.
By letters dated 23 September 2024 and 21 November 2024 the representative made written submissions on behalf of the applicant and the applicant's daughter. The Tribunal has taken these submissions into consideration in determining this application for review. By letter dated 22 November 2024 the representative provided documents related to the applicant's daughter. These documents comprised medical evidence indicating the applicant's daughter had surgery related to [her medical condition] and for which she still needs periodic review. The documents also comprised the assessment of a paediatrician stating that the applicant's daughter did not present as someone in the intellectual disability range. The paediatrician stated that the applicant's daughter did have language delay but was improving with her language skills being a bit behind in her performance at school. That conclusion was consistent with documents provided from the school attended by the applicant's daughter referring to her development.
FINDINGS
Findings on jurisdiction
On 7 May 2019 the delegate made a decision to refuse to grant [Partner A], the applicant and the applicant's daughter protection visas. On 21 May 2019 an application for review of the decision of the delegate was made. In the application for review form only [Partner A] was named as the person applying for review. Uploaded with the application for review was the decision of the delegate as well as notification of the decision from the delegate. In that decision, the delegate named [Partner A], the applicant and the applicant's daughter as applicants for protection visas the subject of the delegate’s assessment and decision. Notification of the decision was dated 7 May 2019 and sent by email to the person nominated as the representative for the applicants at that time. The application for review was made within 28 days from the date that the applicants, through the representative, were notified of the decision of the delegate.
As stated above by letter dated 26 October 2021 the representative for [Partner A] advised that the applicant and the applicant's daughter had been omitted mistakenly by the representative from the review application form even though they were intended to be included as applicants for review. The Tribunal considers that the review application was made by the applicant and the applicant's daughter within the requisite period of 28 days from the date that notification of the decision of the delegate was received by the representative. The Tribunal makes that finding on the basis of substantial compliance, that the application for review contained information necessary to properly invoke the Tribunal’s jurisdiction and set in train the process of review.[2]
[2] MZAIC v MIBP [2016] FCAFC 25 at [51], [58].
That necessary information was contained in the decision of the delegate lodged with the application for review which included the name of the applicant and the applicant's daughter, their dates of birth, relevant identification numbers along with the relevant number of the Department file. In addition, the evidence before the Tribunal is that it was intended that the applicant and her daughter be included in the application for review and were omitted due to the mistake of the representative at that time. In the alternative, another ground on which the Tribunal finds that it has jurisdiction to determine this application for review is the failure by the delegate in the notification of the decision to clearly state that the requisite 28 day period commenced from the date that the representative received the decision of the delegate. That failure meant that the notification by the delegate was invalid and therefore the requisite 28 day period never commenced. [3]
[3] Sandor v MICMA [2023] FCA 424.
Findings on nationality
Section 5(1)(a) of the Act provides that the country of which the non-citizen is a national is to be determined solely by reference to the law of the relevant country. Article 11 of the Haitian Constitution of 1987 (as amended) provides that any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of birth.[4] The Tribunal understands the applicant’s parents to have been native born Haitians who have never renounced their nationality. That is confirmed by the Haitian passport issued to the applicant and which she produced at the hearing. Although that passport expired in 2017, based on the provision of the constitution referred to and the fact that the applicant was issued with a Haitian passport, the Tribunal finds that the applicant is a Haitian national.
[4] Constitute Project, Haiti’s Constitution of 1987 with Amendments through 2012, 19 February 2021, Article 11.
The applicant provided a birth certificate for her daughter showing that the applicant is her mother. The applicant's daughter is a child of at least one parent who is a Haitian citizen by birth, being the applicant herself. By that means, pursuant to Article 11 of the Constitution, the applicant's daughter acquires Haitian citizenship by descent or right of blood regardless of her country of birth.[5] In addition, there is no evidence before the Tribunal that the applicant herself ever renounced her nationality. Country information indicates that a child born abroad must be registered at the nearest Haitian consulate or embassy in order to obtain citizenship.[6] Although there is no evidence before the Tribunal that the applicant has registered her daughter in that sense, the applicable law makes clear that her daughter acquires Haitian citizenship by descent. Accordingly, the Tribunal finds that the applicant's daughter is a Haitian national.
[5] Constitute Project, Haiti’s Constitution of 1987 with Amendments through 2012, 19 February 2021, Article 11. See also Robb Rousseau, Who and what defines a Haitian national?, Haitian Times, 3 June 2020. Rousseau states that the Haitian constitution in Article 11 recognises the right of blood as the main criterion to be a Haitian and therefore the individual born abroad to a foreign parent and a Haitian parent is also Haitian.
[6] Visit World Today, Citizenship and permanent residence in Haiti: necessary documents, 2024.
The Tribunal has also taken into consideration the fact that [Partner A], the father of the applicant's daughter, is a citizen of [Country 1]. Country information indicates that pursuant to the applicable law, [Country 1] nationality is obtained by birth in [Country 1] or by birth abroad to at least one of whose parents hold [Country 1] nationality.[7] However, the applicable relevant law provides that [Country 1] nationality is “singular and exclusive” and “cannot be held concurrently with another nationality”.[8] [Country 1] does not recognise dual nationality.[9] Accordingly, as the applicant's daughter holds Haitian nationality, she cannot be a national of [Country 1].
[7] [Source deleted.] According to this source, children born of a parent with [Country 1] nationality, whether born in [Country 1] or abroad, automatically receive [Country 1] nationality as set out in [Legal source deleted].
[8] [Source deleted.]
[9] [Source deleted.]
Findings on credibility
The Tribunal has set out above the evidence given by the applicant based on which the applicant and the applicant's daughter claim protection. With respect to the protection visa application made in the name of the applicant the Tribunal accepts that the applicant's parents were not declared as deceased through a mistake made in completion of that application form. More generally, the Tribunal also accepts the applicant's claim that she had no involvement in the making of the protection visa application, completion of the protection visa application forms as well as the opportunity to present evidence at an interview with the delegate.
The Tribunal accepts the applicant's claim that her former partner [Partner A] and a representative engaged by him were in full control of the process of applying for protection and the evidence to be put forward in support of the application. Accordingly, the fact that the evidence now put forward by the applicant based on which she claims protection was not put forward to the delegate, does not cause the Tribunal to disbelieve that evidence. There is a reasonable explanation for that evidence not being put forward to the delegate (Section 367A of the Act). The Tribunal finds credible the applicant’s evidence about her life in Haiti, the loss of siblings and parents in the earthquake in 2010, her evidence that she has no contact with anybody in Haiti and her evidence that her relationship with [Partner A] has ended, leaving her as the caregiver for their [number] children.
Findings on merits
Do the applicants satisfy the refugee criterion for protection?
The Tribunal now turns to the issue of whether there is a real chance the applicant and the applicant's daughter will suffer serious harm in Haiti. For this, the Tribunal first considers the status of governance of Haiti. The current Prime Minister of Haiti was appointed in November 2024 by a transitional presidential council and has since announced an 18 member unelected ministerial cabinet.[10] In this respect, the Haitian parliament has been dysfunctional since 2019 when the then President Moise refused to organise legislative elections.[11] Since the assassination of that president in 2021, Haiti has been governed by a succession of unelected prime ministers.[12] Since January 2023, Haiti has not had national elected officials.[13] According to the United States Department of State, the Haitian parliament had been “unable to function since neither the upper nor the lower house had any elected members”.[14]
[10] The Guardian, Haiti appoints new prime minister as security crisis mounts, 12 November 2024; Haitian Times, Meet Haiti’s new cabinet: the key players shaping the transition under Fils-Aime, 19 November 2024.
[11] Human Rights Watch, Human Rights Watch World Report 2024, 11 January 2024, p 275; Al Jazeera, Haiti Prime Minister Ariel Henry resigns, transitional council takes power, 25 April 2024,
[12] Human Rights Watch, Human Rights Watch World Report 2024, 11 January 2024, p 275.
[13] Human Rights Watch, Human Rights Watch World Report 2024, 11 January 2024, p 275; The Guardian, Haiti appoints new prime minister as security crisis mounts, 12 November 2024.
[14] United States Department of State, Country Reports on Human Rights Practices for 2023 – Haiti, 22 April 2024, Section 3.
In that dysfunctional state of governance of the nation, country information indicates that Haiti’s capital city, Port-au-Prince, and surrounding areas are largely controlled by criminal gangs who hold considerable power over those regions. In this respect, more than 300 criminal groups controlled 80 per cent of Port-au-Prince as at September 2023.[15] These criminal groups exert control over the people living in those areas.[16] Those areas are “characterised by the absence of state institutions, state programmes and policies”.[17] More recently, Human Rights Watch reported that for 2024, Haiti’s “multidimensional crisis reached catastrophic levels” with criminal groups intensifying large-scale and coordinated attacks that “brought the country to a standstill from February to May, and from October to the present”.[18]
[15] Human Rights Watch, Human Rights Watch World Report 2024, 11 January 2024, p 279.
[16] Freedom House, Freedom in the World 2024 - Haiti, 2024.
[17] United Nations Office of the High Commissioner for Human Rights, Sexual violence in Port-au-Prince: A weapon used by gangs to instil fear, October 2022, page 8.
[18] Human Rights Watch, Human Rights Watch World Report 2025, 16 January 2025, p 202.
The Tribunal has considered country information indicating what harm the applicant and the applicant’s daughter would suffer in the circumstances described above. Country information indicates that there is a high level of gender based violence in Haiti, including sexual violence and rape targeting women and girls and perpetrated by armed groups and gangs.[19] Children have been reportedly forced or coerced into joining gangs where girls are particularly at risk of sexual violence from gang members.[20] Gangs in Haiti are said to use rape and other forms of sexual violence to “instil fear, punish, subjugate, and inflict pain on local populations with the ultimate goal of expanding their areas of influence”.[21]
[19] United Nations Office of the High Commissioner for Human Rights, Sexual violence in Port-au-Prince: A weapon used by gangs to instil fear, October 2022, page 3; United Nations Integrated Office in Haiti (BINUH), Quarterly Report on the Human Rights Situation in Haiti (October - December 2023), 1 February 2024, page 6; Global Initiative Against Transnational Organised Crime, Gang control and security vacuums: Assessing gender based violence in Cite soleil, Haiti, 4 May 2023, page 3.
[20] Human Rights Watch, Haiti: Criminal violence, hunger trapping children, 9 October 2024; United States Department of State, Country Reports on Human Rights Practices for 2023 – Haiti, 22 April 2024, Section 6.
[21] United Nations Office of the High Commissioner for Human Rights, Sexual violence in Port-au-Prince: A weapon used by gangs to instil fear, October 2022, page 3; D Da Rin, International Crisis Group, Haitians turn to mob justice as the gang threat festers, 23 July 2023; United Nations Security Council, United Nations Integrated Office in Haiti - Report of the Secretary-General (15 January 2024), 15 January 2024, pages 6 – 7.
The use of sexual violence is also described as being to bolster the position of power of armed groups.[22] In this sexual violence perpetrated by gangs, women and girls are specifically targeted.[23] In terms of assessing whether there is a real chance that the applicant and the applicant's daughter would suffer such harm in the form of sexual violence, country information indicates that the judiciary and police force in Haiti, are both under-resourced, plagued by corruption and face security threats.[24] There are said to be strong ties between criminal gangs and politicians.[25] In terms of protection for gender based violence in which women and girls are targeted, such protection is impeded by a high level of impunity, a mistrust of the authorities and a lack of capacity of state institutions to provide assistance or investigate.[26] Although laws against rape and sexual violence exist in Haiti they are not enforced.[27]
[22] United Nations Office of the High Commissioner for Human Rights, Sexual violence in Port-au-Prince: A weapon used by gangs to instil fear, October 2022, page 3.
[23] Global Initiative Against Transnational Organised Crime, Gang control and security vacuums: Assessing gender based violence in Cite soleil, Haiti, 4 May 2023, page 3; Jess DiPierro Obert, The New Humanitarian, Exclusive: Surge in use of rape against women and rivals by Haiti gangs, 14 November 2022.
[24] Freedom House, Freedom in the World 2024 - Haiti, 2024, Section C.2; International Crisis Group, Haiti’s gangs: Can a foreign mission break their stranglehold, 5 January 2024, pages 3 – 6.
[25] International Crisis Group, Haiti’s gangs: Can a foreign mission break their stranglehold, 5 January 2024, pages 3 – 6.
[26] Immigration and Refugee Board of Canada, HT1201783.E – Haiti: Sexual and gender based violence including acts perpetrated by criminal groups; treatment of survivors by society and state authorities; support services; state protection (2022 - January 2024), 5 February 2024;
[27] United States Department of State, Country Reports on Human Rights Practices for 2023 – Haiti, 22 April 2024, Section 6.
There is very limited official data on these crimes as very few survivors are willing to report their abuse due to fear of retaliation and stigma.[28] Although that is the case, sexual violence in 2024 was found to have escalated, “becoming widespread” with 5,400 cases of gender based violence reported to have occurred between January and October 2024; that violence committed mostly by members of criminal groups and children being among the hardest hit.[29]
[28] United Nations Office of the High Commissioner for Human Rights, Sexual violence in Port-au-Prince: A weapon used by gangs to instil fear, October 2022, page 5; United Nations Security Council, United Nations Integrated Office in Haiti - Report of the Secretary-General (15 January 2024), 15 January 2024, pages 6 – 7.
[29] Human Rights Watch, Human Rights Watch World Report 2025, 16 January 2025, p 204.
The sources considered by the Tribunal refer to the preponderance of criminal gangs in Haiti’s capital and surrounding areas. A consistent theme of country information about the activity of criminal gangs is that their power is expanding through the country.[30] Sources indicate that gangs kidnap and harm people while in the streets and also while travelling.[31] The Tribunal infers from that information that a person is at risk attempting to travel to another part of the country but also moving outside their home for employment, education and healthcare. With respect to the latter matters, due to the security situation in Haiti, schools have closed and the health care system in Haiti is described as being “on the brink of collapse”.[32]
[30] United Nations Security Council, United Nations Integrated Office in Haiti - Report of the Secretary-General (15 January 2024), 15 January 2024, pages 6 – 7; D Da Rin, International Crisis Group, Haitians turn to mob justice as the gang threat festers, 23 July 2023.
[31] United Nations Security Council, United Nations Integrated Office in Haiti - Report of the Secretary-General (15 January 2024), 15 January 2024, pages 6 – 7.
[32] Human Rights Watch, Haiti: Criminal violence, hunger trapping children, 9 October 2024; Human Rights Watch, Human Rights Watch World Report 2025, 16 January 2025, p 202.
Based on this country information, the Tribunal finds that there is a real chance that the applicant and the applicant's daughter will suffer harm in the form of gender based violence from criminal gangs. Although official data on the prevalence of this crime might be limited, available country information indicates that the instances of gender based violence are escalating and are significantly high. The Tribunal also accepts in making that finding the fact that the applicant suffered domestic violence at the hands of [Mr A] before she left Haiti and at that time she was told that individual was endeavouring to locate and harm her. The finding that there is a real chance the applicant and the applicant's daughter will suffer such harm is confirmed by what country information clearly indicates is the absence of any form of state protection. The Tribunal considers the risk of there being a real chance of the applicant and the applicant's daughter suffering such harm applies to the capital of Haiti where the applicant lived and where, as the capital, the applicant and the applicant’s daughter are most likely to return.

Country information indicates that the power and areas under control of gangs is increasing. Accordingly, even if the applicant attempted to return to her native town of [Commune 1], she and her daughter are still at risk of harm from gangs. That is also due to country information indicating gangs can attack them when they are on the street and while in transport. In addition, the Tribunal has also taken into consideration the fact that the applicant and the applicant's daughter will return to Haiti alone and without any form of protection including familial or male protection. The Tribunal considers that returning from Australia the applicant and the applicant’s daughter could be perceived as wealthy and therefore will be vulnerable to being attacked.
In addition, the Tribunal has also considered the medical evidence before it about the applicant's daughter according to which she will need supervision related to her [medical] condition. As well, the applicant's daughter will be having to adjust to a country and culture of which she has no experience and where she does not speak the languages spoken. The Tribunal considers that this makes her more vulnerable and at greater risk of harm from criminal gangs, the Tribunal taking into consideration country information about the treatment of children with disability.[33] That information is correct to take into account given the problems the applicant's daughter has experienced at school, albeit her school records indicate her performance is improving.
[33] See United Nations High Commissioner for Refugees (“UNHCR”), International Protection Considerations with regard to people fleeing Haiti, 20 March 2024. At page 99, UNHCR states that psychosocial, intellectual or physical disabilities may increase the vulnerability of persons who also fit other risk profiles such as women and girls.
The Tribunal also considers that the applicant will struggle to obtain employment given the risk of harm from gangs if she was to attend a workplace. Similarly the Tribunal can appreciate the risk for the applicant’s daughter in attending school and the risk for both in obtaining healthcare. Country information discussed above indicates that both access to education and health care are limited due to the security situation. Being unable to actually access those facilities could again be something that makes the applicant and the applicant’s daughter more vulnerable and at greater risk of suffering harm at the hands of criminal gangs.
The Tribunal considers that being victims of gender based violence amounts to serious harm, instances of which are specified in section 5J(5) of the Act, such instances including a threat to the person’s life or liberty (section 5J(a)) and significant physical harassment and ill-treatment (sections 5J(5)(b) and (c)). Being targeted by criminal gangs for gender based violence, as discussed above, could also amount to a threat to a person's capacity to subsist within the concepts of Sections 5J(5)(d) – 5J(5)(f). The Tribunal considers that there is a real chance that the applicant and the applicant's daughter will suffer this serious harm for the reason of their membership of a particular social group (Section 5J(1)(a)). Their membership of a particular social group is the essential and significant reason for that serious harm (Section 5J(4)(a)) and by which that serious harm involves systematic and discriminatory conduct (Section 5J(4)(c)).
With respect to the applicant, the Tribunal considers the particular social group to be comprised of single women with young children and no familial or male support.[34] The Tribunal considers the applicant's daughter to be a member of a particular social group comprised of young female children with no familial or male support.[35] The country information indicates that criminal gangs engage in gender based violence to subjugate the population and gain control over territory. Country information indicates that to achieve those aims women and young female children are specifically targeted. Those, in particular, most likely to be specifically targeted are women and young female children without family and male protection.
[34] MIMA v Khawar (2002) 210 CLR 1.
[35] MIMA v Khawar (2002) 210 CLR 1.
The Tribunal finds that the serious harm, for which there is a real chance that the applicant and the applicant's daughter will suffer, relates to all areas of Haiti (Section 5J(1)(c)). This finding is based on the sources of country information discussed above according to which criminal gangs’ control over territory continues to expand beyond the capital to which the applicant and the applicant's daughter are most likely to return to enter Haiti. The Tribunal makes that finding based on criminal gangs continuing to seek expansion of territory to control in the reasonably foreseeable future. In addition, given the state of Haiti, in terms of chaos and insecurity, the Tribunal would consider that other parts of Haiti away from the capital and surrounding areas may not be considered as safe human habitation and for which safe access may not be possible given country information indicates criminal gangs target people while on the street or in transport.[36]
[36] FCS17 v MHA (2020) 276 FCR 644.
Based on the country information with respect to state protection and its absence, the Tribunal finds that there are not effective protection measures available to the applicant and the applicant's daughter in Haiti within the meaning of sections 5J(2) and 5LA. With respect to section 5J(3), there is no behaviour the applicant and the applicant's daughter can modify to avoid a real chance of suffering serious harm. The applicant and the applicant's daughter are at risk because of their membership of the particular social groups mentioned above which, if anything, would relate to an innate or immutable characteristic of a person within the meaning of Section 5J(3)(b) which is not required to be concealed.
For the reasons given above, the Tribunal finds that there is a real chance that the applicant and the applicant's daughter will suffer serious harm in the reasonably foreseeable future in Haiti. The essential and significant reason for that serious harm is their membership of the particular social groups specified above. Accordingly, the Tribunal finds that the applicant and the applicant’s daughter hold a well-founded fear of persecution and meet the refugee criterion in s 36(2)(a).
The Tribunal adds that the applicant and the applicant’s daughter would also have met the alternative criterion in Section 36(2)(aa). Based on the available country information, there is a real risk that the applicant and the applicant's daughter would suffer significant harm, as that term is defined, in the form of gender based violence. Protection could not be accessed from the authorities, the risk they face for gender based violence is not one faced by the population generally and the real risk of significant harm would apply to all of Haiti. As stated above, given the chaos and insecurity in that country, along with the risk of harm while in transport, it would not be reasonable for the applicant and the applicant's daughter to relocate.
Do the applicants have the right to enter and reside in a third country?
Pursuant to section 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail herself of a right to enter and reside in any country apart from Australia. That right must be an existing right and not a past or lapsed right or a potential right or an expectancy.[37] A liberty, permission or privilege lawfully given and which has not been withdrawn is sufficient to amount to the right in question.[38] Where an applicant has allowed a right to enter and reside in another country to lapse, that will not amount to conduct that must be disregarded in determining whether the applicant has a well-founded fear of persecution.[39]
[37] MIMAC v SZRHU (2013) 215 FCR 35. At [45] the Court stated that the relevant liberty, permission or privilege must be a permission which obtains its effective substance from its grant and thereafter from the lack of any withdrawal of it and from the lack of any existing prohibition or law contrary to its exercise.
[38] MIMAC v SZRHU (2013) 215 FCR 35.
[39] Department of Home Affairs, Refugee Law Guidelines, section 3.18.3.4, as re-issued 27 November 2022.
As stated above, the applicant produced an identity document issued by [Country 2] authorities referring to a “classification” of “permanent” valid until [September] 2021. The Tribunal understands this to be evidence that the applicant held a visa to be able to reside in [Country 2], that visa being valid until [September] 2021. Accordingly, based on the evidence before it, the Tribunal understands that the applicant and the applicant's daughter do not hold visas to enter any country including [Country 2]. As the applicant had lived in [Country 2] with a visa, the Tribunal has examined available country information on the question as to whether Haitian nationals have the right to enter and reside in [Country 2].
To enter [Country 2], Haitian nationals are required to have a “Visit Visa”.[40] Country information on how Haitians may enter and reside in [Country 2] indicates that “foreigners in [Country 2]” may receive a visitor or temporary visa which can include a humanitarian visa.[41] To receive a temporary visa, a completed visa application form must be provided.[42] With respect to the applicant having held a residence permit, country information indicates that a residence permit will be revoked where the holder has been absent from [Country 2] for a period of more than two years without justification.[43] With respect to Haitian nationals granted temporary visas and authorization of residency for humanitarian reasons, the basis for the humanitarian admission is null and void where the immigrant leaves [Country 2] with the intent of doing so permanently or does so without migratory control if it gets proven by means of information that she has made an attempt to reside in another country.[44]
[40] [Source deleted.]
[41] [Source deleted.]
[42] [Source deleted.]
[43] [Source deleted.]
[44] [Source deleted.]
Individuals whose absence from [Country 2] exceeds the allowable period and who wish to maintain the validity of their residence permit, must present a justification which will be subject to analysis by the authorities.[45] Given what appears to have been the applicant's residence visa expiring in September 2021, it is questionable as to whether the applicant could actually seek to maintain the validity of the residence permit as mentioned. Even then, country information makes clear that the applicant would have to make an application for such an order. It is clear from country information that to be able to even enter [Country 2] the applicant and the applicant's daughter must make an application for the appropriate visa referred to in country information as temporary or visitor.
[45] [Source deleted.]
Accordingly, due to the need for the application to be made and what appears to have been the expiry or lapse of the visa that was originally held, based on the legal principles set out above, the Tribunal finds that the applicant and the applicant's daughter do not hold a right to enter and reside in [Country 2]. The Tribunal also notes that while the applicant's daughter has a parent who is a national of [Country 1], country information also indicates that to enter that country the applicant's daughter would have to apply for and obtain a visa.[46] Accordingly, the applicant's daughter does not hold a right to enter and reside in [Country 1].
[46] [Source deleted].
CONCLUSIONS
For the reasons given above, the Tribunal is satisfied that each of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants satisfy the criterion set out in s 36(2)(a).
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
·(i) the first named applicant meets s 36(2)(a) of the Migration Act; and
·(ii) the other applicant meets s 36(2)(a) of the Migration Act.
Date of hearing:   20 December 2024
Representative for the applicant:              Mr McCarthy
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.
…