1711141 (Refugee)

[2021] AATA 574

1711141 (Refugee) [2021] AATA 574 (22 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1711141

COUNTRY OF REFERENCE:                   China

MEMBER:Lilly Mojsin

DATE:22 January 2021

PLACE OF DECISION:  Sydney

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

Statement made on 22 January 2021 at 4:30 pm

CATCHWORDS

REFUGEE – protection visa – China – failed to attend the Tribunal hearing – organizer and protestor regarding environmental issues – claimed membership of 'Return my beautiful country' – able to exit China legally – no adverse profile in China – delay in applying for protection visa – credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 425, 426A, 441A, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other 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 Immigration and Border Protection on 9 May 2017 to refuse to grant the applicant a Protection Visa [PV] under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of China, arrived in Australia as the holder of a tourist visa in June 2015 and applied for the visa on 4 April 2017. The delegate refused to grant the visa as the delegate was not satisfied that the applicant suffered any harm in China or that he would suffer serious or significant harm on his return to China.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Tribunal decision.

4. On 24 December 2020 the applicant was notified that the Tribunal had considered the material before it, but the Tribunal was unable to make a favourable decision on this information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review, on 21 January 2021 at 1.30pm. The invitation stated that if he did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it.

5. The Tribunal sent the applicant SMS reminders of the hearing date and also unsuccessfully attempted to telephone the applicant twice prior to the hearing. The applicant did not acknowledge the Tribunal correspondence.

6. The applicant did not attend the scheduled hearing on 21 January 2021 at 1.30pm.

   RELEVANT LAW

7. See Annexure A.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The applicant claims, in his PV, that when he was a child 'air was clean and clear, water was clean and full of fish, food was safe and delicious'. Conditions started changing after he graduated from high school with China's environment having gone 'from bad to worse'.

9. In 2013 many activists in Guangzhou and the southern provinces formed a team called 'Return my beautiful country'. The group's intention was to inspire awareness regarding environmental protection by criticising the pollution. Initially the group's influence was limited.

10. As pollution worsened, they gained attention from the public as well as the government. Members of the group were questioned by the police and officers from the Bureau of National Security, who suspected they had links to overseas organisations. In November 2014 members were detained and questioned by the authorities, with many giving up the fight against pollution or fleeing.

11. As the leader of the group the applicant would not give up but found he had 'no way to live in China anymore' - he lost his job and girlfriend. The applicant states that he was detained several times, with the longest being a month in 2014, and he was monitored 24-hours as well as kept under house arrest. Fortunately, the applicant had connections with activists in Hong Kong who provided financial support and helped him escape to Australia.

12. He claims he will be persecuted by Chinese authority for sure, he will be detained and questioned. They know he has been in Australia and will detain him until they are convinced that he has not collaborated with foreign organizations. More importantly, he must stop organizing and participating in any protests, which he will not accept, forever. Therefore, he will not have a chance to live in China as a normal citizen who has the basic right, free from fear.

13. He had tried to go to Beijing, the capital of China "shangfang" (appeal) his suffering, and he was sent to Guangzhou by Guangzhou police. The police in Guangzhou even sent 2 man to monitor him in 24 hours. Later, he was not allowed to leave his home, he was under 'home custody'.

14. With his PV application the applicant provided newspaper reports regarding the clampdown in Chengdu over protesters placing masks on statues in anger at air pollution and environmental protests in December 2016.  He also provided a copy of his passport issued in [2015] in Guangdong and valid until 2025.

    REASONS AND FINDINGS

15. Section 426A of the Migration Act provides that if an applicant has been invited under s425 to attend a hearing and does not appear on the day on which, or at the time and place at which, she or he is scheduled to appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

16. The applicant did not attend the Tribunal scheduled hearing. I find that the applicant was aware of the issues before the Tribunal, as the issues were set out in the delegate's decision provided by the applicant to the Tribunal, and the applicant failed to take advantage of the opportunity to attend the hearing and present evidence and arguments in support of the application, or provide any other supporting evidence

17. I find the hearing invitation was sent to the applicant's email address, the email address that was given by the applicant in the applicant's application for review. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s.441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I proceed to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

18. On the basis of his Chinese passport, I accept that the applicant is a national of China and not a national or citizen of any other country. I accept that the applicant does not have a right to enter and reside in any country other than China. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).

19. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

20. The applicant claims that he was an organizer and protestor regarding environmental issues and that he was detained and harmed in China necessitating his escaping from China in 2015.

21. I accept that in 2013 in Guangdong Chinese environmental activists and local residents were involved in a number of demonstrations against the government regarding plans to build a waste incinerator plant[1] and demonstrations continued regarding the air quality and pollution in different parts of China over a number of years. I note that in December 2015[2], Beijing issued red alerts for severe pollution—the first since establishing an emergency alert system. The municipal government closed schools, limited road traffic, halted outdoor construction, and paused factory manufacturing. At least 80 percent of China’s 367 cities with real-time air quality monitoring failed to meet national small-particle pollution standards during the first three quarters of 2015, according to a Greenpeace East Asia report. In December 2015, the Asian Development Bank approved a $300 million loan to help China address the capital region’s choking smog.

    [1]

    [2]

22. DFAT, Country Information Report – People's Republic of China in its 2013 report states:

    3.19 The CCP has no tolerance for any form of dissent. There is some room for the expression of views on policy matters that don’t involve questioning the legitimacy of the central authorities, for example, in relation to environmental concerns or, in limited circumstances, commentary on corrupt officials. There is no reliable guide for the tolerance of alternate political opinion, given the inconsistency of enforcement across the country and the restrictions on the flow of information. Pre-emptive detention of activists and rights defenders is common around political anniversaries and other high-profile or “sensitive” events. Those publicly advocating greater human or civil rights, and calling for enforcement of the rights and protections enshrined in China’s Constitution have also been detained and charged under public order offenses. Provincial and local authorities have on occasion been harsh in their treatment of critics.

23. As the independent evidence states that there is some room for expression of views on environmental matters and as the applicant did not provide any details of any protests in which he was involved, as an organiser or a protestor, without further information from the applicant, I am unable to accept that the applicant was a member of 'Return my beautiful country', or that he organised and protested against environmental issues or that he was consequently detained on a number of occasions, the longest period for a month in 2014. It follows that I also do not accept that the applicant was questioned by the police and officers from the Bureau of National Security, who suspected links to overseas organisations, or that he was monitored for 24 hours or that he was placed under house arrest.

24. The applicant provided a copy of his passport issued in February 2015 in Guangdong with this PV application. He claims at Q55 that he was able to obtain a travel document by asking a friend who works in a government department to help him apply for the passport because his local council and the police did not agree to support him.

25. According to the then current DFAT Country Information Report – People's Republic of China 3 March 2015, being the current DFAT report at the time the applicant left China:

    5.22 According to the Passport Law of the People’s Republic of China (2006), ordinary passport applicants are required to apply in person to the Entry-Exit Control Department of the Ministry of Public Security or their designated bureaus where hukou is registered. Applicants must provide their resident identification card, resident household registration book, recent photos and other materials related to the reasons for their application. Approved applications are generally issued within 15 to 30 days. If a passport application is refused, reasons for the refusal must be provided in writing and the applicant is to be informed of their right to apply for administrative reconsideration or to file an administrative lawsuit.

    5.24 Authorities can refuse to issue passports for people who are believed “will undermine national security or cause major losses to the interests of the State”. According to the US Congressional-Executive Commission on China, in 2013 an estimated 14 million people were affected by restrictions on foreign travel and acquiring passports, many of them religious and political dissidents, including Uighurs and Tibetans. The government does not publish figures on those who have been denied passports.

26. In light of the above information that residents must apply in person for a passport at the Ministry of Public Security, I do not accept, without further information from the applicant, that the applicant’s passport was issued because he was able to ask a friend who works in a government department to help him apply for the passport.

27. The applicant has stated at Q50 of his PV application that he was able to exit China legally with a passport in his own name, leaving from Hong Kong.

28. DFAT Report China 3 March 2015 states:

    5.16 Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at Chinese airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Security monitoring capabilities at major airports are comprehensive

29. The applicant did not attend the Tribunal hearing and I am unable to explore with the applicant the independent evidence, cited above, regarding China’s monitoring at airports when its citizens are leaving China. Therefore, in light of the applicant’s ability to obtain a passport and to leave China legally, I do not accept, without further evidence from the applicant, that the applicant escaped to Australia. I also do not accept that he tried to go to Beijing to appeal his suffering or that the Guangzhou police monitored him and he was not allowed to leave his home as he was under house custody.

30. The applicant arrived in Australia in 2015. He applied for a PV in 2017. I do not accept, without further information from the applicant, that he had a subjective fear of persecution on his arrival, as he did not apply for a PV until some 2 years later.  I am satisfied his delay in applying for a PV indicates a lack of a subjective fear of persecution.

31. I have considered all of the applicant’s evidence singularly and cumulatively. I am satisfied therefore that the applicant had no adverse profile in China prior to departing for Australia, as the holder of a Tourist visa. I am satisfied the applicant did not flee China fearing harm.

32. I am required to consider if the applicant would suffer serious harm in the future if he were to return to China for one or more of the reasons mentioned in paragraph 5J(1)(a) or if he were to suffer substantial harm.

33. As I do not accept that the applicant organised or participated in protests in China therefore, I do not accept, without further information from the applicant, that he would organize or participate in any protests on his return to China.

34. The applicant made no claims that he has been involved in activities in Australia that would bring him to the attention of the Chinese authorities on his return. I have rejected his claims that he suffered any harm in China. Therefore, I find remote the chance that the applicant would be persecuted or detained and questioned on his return. I do not accept that because he merely travelled to Australia this indicates that he will be accused of collaborating with foreign organizations and be detained.  There is no evidence before me to suggest that Chinese nationals who return to China after leaving legally are detained. I am of the view that were it the situation it would be known to independent sources such as Amnesty International, UK Home Office, US State Department and DFAT who report extensively on human rights issues in China.

35. The applicant left China as the holder of tourist visa and travelled to Australia.  I am satisfied the applicant did not suffer any harm in China and I am satisfied that the applicant does not have a profile that would cause him to be of any interest to the authorities in China. Therefore, I am not satisfied that the authorities will detain or persecute him or harm him on his return to China.

36. I find that the applicant does not have a real chance that, if returned to China, he would suffer serious harm for one or more of the reasons mentioned in paragraph 5J(1)(a). I find that the applicant does not have a well-founded fear of serious harm for these reasons.

37. I have considered whether the applicant meets the complementary protection criterion under s.36(2)(aa).

38. As stated above, I reject the applicants’ claims he suffered any harm in China as a Chinese citizen living in Guandong.  Therefore, I find remote the chance that the applicant will suffer significant harm on return to China.

39. As the applicant was not harmed in China and as I am not satisfied the applicant gained an adverse profile in Australia, I do not accept on the evidence before me, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

40. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    CONCLUSIONS

41. 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).

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

    DECISION

43. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Lilly Mojsin
    Member

    
    

    ANNEXURE A

    Criteria for a protection visa

44. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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.

45. 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.

46. 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).

47. 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.

1. 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

2. 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.

   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.

   …