1731209 (Refugee)

1731209 (Refugee) [2023] AATA 4021 (26 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1731209

COUNTRY OF REFERENCE: China
MEMBER:Frank Russo
DATE:26 September 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 September 2023 at 5:25pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – arrests – forced reporting to the police – home Bible churches – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 425, 426A, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 24 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who, claims to be a citizen of China, applied for the visa on 17 August 2017. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in China and, if not, whether 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 suffer significant harm.
On 2 June 2022 the applicant provided the Tribunal with a form appointing a representative and authorised recipient.
On 20 June 2023 the Tribunal sent an email to the applicant’s authorised recipient, indicating that the applicant’s file was being prepared to be given to a Tribunal Member and requesting that a pre-hearing information from be completed and returned to the Tribunal within 7 days.
On 14 and 22 August 2023 the applicant provided the Tribunal with a change of contact details form signed on 14 August 2023, in which the applicant appointed himself as authorised recipient and representative.
On 24 August 2023, the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at an in-person hearing at 1:00pm on 22 September 2023. The applicant was advised that if he did not attend the scheduled hearing and a postponement was not granted, the Tribunal may make a decision on the review without further notice.
The applicant did not provide a response to the hearing invitation.
The Tribunal also sent SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. The record of their transmission does not indicate that there was any failure in their delivery.
The applicant did not appear before the Tribunal on the day and at the time he was scheduled to appear. No further communication has been received from the applicant.
On the day of the scheduled hearing, an officer of the Tribunal conducted checks of the Tribunal premises for the applicant’s presence, including the Tribunal’s front counter at 1:00pm, 1:15pm and 1:30pm EST. No satisfactory reason for the non-appearance has been given, despite the passing of two full working days since the day of the scheduled hearing.
Section 426A of the Act provides that if an applicant has been invited under s.425 of the Act to attend a hearing and does not appear on the day on which, or at the time and place at which, they are 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.
Based on the evidence before it, the Tribunal finds that the hearing invitation was sent to the email address of the applicant provided in respect of his application for review. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
CRITERIA FOR A 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In support of his application for review, the applicant provided the Tribunal with a copy of the notice from the Department of the delegate’s decision. He has not provided the Tribunal with any further evidence in support of his application. The Tribunal notes that the applicant has not provided a copy of the delegate’s decision to the Tribunal, however, the applicant did not attend a Departmental interview or give any testimony to the Department and the Tribunal does not seek to rely on any adverse information contained in the delegate's decision.
The applicant provided change of representative/authorised recipient forms in June 2022, and December 2022, and most recently in August 2023. The applicant also requested letters in support of Medicare access in April 2020, June 2022, November 2022, and most recently in August 2023.
The Tribunal also has a copy of the Department file and has had regard to the documents on that file. The applicant provided with his Protection visa application a ‘personal statement’ in Chinese, dated 9 August 2017, and translated into English, and a copy of the biometrics pages of the applicant’s Chinese passport. The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about China.
As noted above, the issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons set out in s.5J of the Act in China and, if not, whether 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 suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Claims made in Protection visa application
In the one-page written statement attached to his Protection visa application, the applicant makes the following claims:
a.He is from Shandong Province, China;
b.When the applicant was 18 years old, his father developed [medical condition 1], following which he was confined to a hospital for one month and from then on required crutches to walk. An ‘aunt’ from his village visited his father and took a Bible and some pamphlets and often took his father to a ‘small family party’;
c.The applicant also attended these sessions, where he learned the Bible and sang hymns. He started to learn to pray every day and confessed to God;
d.One day when they were gathered together, someone reported them to the police. More than 10 people were present and all of them were arrested. They were detained for 15 days and had to write a ‘regret letter’. After they were released they were directed to report to the police each month;
e.In 1997 the applicant moved to Weihei City, where he married. He had one child;
f.When his child was [age], she told him that an old lady took her to church and they had dinner there. He realised that his neighbour also believed in God. His neighbour told him that they were not allowed to gather in private, though they began to secretly learn the Bible together with several other people;
g.After his neighbour’s father passed away, his neighbour decided to share the gospel with more people and so she obtained some pamphlets;
h.The applicant accompanied his neighbour as she handed pout pamphlets to passers-by at the entrance of their residential community. After a few days, the neighbourhood council reported them;
i.The applicant and his neighbour were both arrested and detained in different detention centres. They were forced to work there and were not provided with enough food;
j.Half a month later, his neighbour was released, but she became sick and eventually passed away. This made it more difficult for the applicant and the others to gather for Bible study;
k.A church fellow told the applicant that there is religious freedom abroad, and suggested that he go overseas to have a look; and
l.If he returns to China he will have to report regularly to the police and there is no religious freedom. He seeks protection so he can have religious freedom and be free from persecution from the Chinese government.
Departmental interview and delegate’s decision
The applicant failed to attend a scheduled Protection visa interview on 23 November 2017 or to provide an explanation for his non-attendance and the interview was not rescheduled.
The delegate refused the Protection visa application on 24 November 2017. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
Analysis, findings and reasons
The Tribunal is satisfied on the basis of the copy of the applicant’s passport attached to his visa application, that he is a citizen of China. It has assessed him against that country for determining both whether he has a well-founded fear of persecution for the purposes of s.36(2)(a) of the Act and the purposes of determining his “receiving country” for the purposes of s.36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not 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. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal has significant concerns about the applicant's claims. The applicant’s Protection visa application was lodged on 17 August 2017 and is therefore over six years and one month old. The applicant did not attend the interview scheduled by the Department, nor did he attend the hearing to give oral evidence and has provided no evidence in support of his claims since lodging the Protection visa application.
The applicant's claims contained in his written statement accompanying his application are not sufficiently detailed to enable the Tribunal to be satisfied that he faces a real chance of persecution in China or 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 suffer significant harm.
The applicant claims that he was detained on two occasions in China, the first time for 15 days, and the second time for an unspecified period of time. He claims that following the first detention, he was required to report to the police every month. He has not indicated that there was a requirement to report after the second period of detention, though he claims that he will be required to report to the police if he returns to China. Many of the details contained in his written statement, in particular those relating to the attending of Bible study or prayer gatherings over two periods of his life, as well as the details of his detentions by the police, are vague and vague and provide insufficient basis on which the Tribunal can assess the applicant’s current circumstances.
For instance, the applicant has not provided any explanation of what denomination of church the people he prayed with belonged to, nor any evidence of the dates when he was detained. The references in his personal statement to the applicant having attended Bible or prayer gatherings in China are vague and unpersuasive. The applicant did not provide an indication of the date when he was detained by the police a second time, or the date of his release, other than a vague statement that ‘Afterwards’ a church fellow suggested he go abroad to see how religious freedom is practiced. There is no indication of whether there was any delay between the applicant’s second detention and his departure for Australia, nor of how he was able to organise his travel to Australia and depart China if he had been detained by Chinese authorities on two occasions. The applicant has provided no independent evidence in support of these claims, such as copies of arrest warrants or notices of his detentions or of any requirements to report to the police following either detention.
The applicant has not provided the Tribunal with any evidence or claims that he practises Christianity in Australia or that he has attended a church since arriving in Australia over six years ago. For instance, the applicant has not provided any letters of support from a church or any members of a church community, nor any other evidence of his practise of any religion, such as a certificate of baptism. The Tribunal is not aware whether the applicant continues to practise Christianity in Australia and is unable to determine that the applicant is a genuine practitioner of Christianity without hearing oral evidence of his practices and beliefs. Based on the vague and unpersuasive claims the applicant has made in his personal statement, and the lack of any documentation to indicate that the applicant attends a church in Australia, the Tribunal cannot be satisfied that the applicant is a genuine Christian, nor that he has practised as a Christian in either China or Australia.
The Tribunal also has insufficient information, in the absence of hearing evidence from the applicant, as to what the applicant will do if he is returned to China. Had the applicant attended the hearing, I would have discussed with him whether he intends to practice Christianity if he returns to China, including the nature of such practise and whether it would contain any elements which may bring him to the attention of authorities. I would also have discussed relevant country information with him,[1] which indicates that there are options for Christians to attend registered Christian churches in China, and would have discussed with the applicant whether there are any reasons why he could not attend one of these registered churches.
[1] DFAT Country Information Report, People’s Republic of China, 22 December 2021, paras 3.28.
Does Australia have protection obligations to the applicant under the refugee criteria?
Given the lack of information identified above, without the opportunity of a hearing with the applicant, it is difficult for the Tribunal to assess what significance can be attached to the applicant's unsubstantiated assertions. He has not provided any further information to the Tribunal to determine whether his fear of facing persecution in the future is well-founded.
In view of the insufficient information and lack of detail contained in the applicant's claims, the Tribunal is not able to be satisfied that the applicant faces a real chance of serious harm because of his religion, race, nationality, political opinion, or membership of a particular social group in China, nor 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 suffer significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does Australia have protection obligations to the applicant under the complementary protection criterion?

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).
For the reasons stated above, the Tribunal is also unable to find that the applicant meets the complementary protection criterion. As indicated above, the applicant has failed to provide sufficient details regarding his claims for protection. As he did not attend the scheduled hearing, the Tribunal was unable to obtain further details of his claims and to test their veracity. On the evidence before it, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to China now or in the reasonably foreseeable future. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4021

26 September 2023

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