1805879 (Refugee)

[2024] AATA 637

1805879 (Refugee) [2024] AATA 637 (15 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Ronnie He (MARN: 0963986)

CASE NUMBER:  1805879

COUNTRY OF REFERENCE:                   China

MEMBER:Rachelle Johnston

DATE:15 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2024 at 4:17pm

CATCHWORDS
REFUGEE – protection visa – China – land appropriated with inadequate compensation and no resettlement arrangements – property destroyed, animals killed, applicant attacked and husband tortured – vague claims and no independent evidence – consent to decision without hearing – applicant’s responsibility to specific particulars and provide evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), (4), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 425
Migration Regulations 1994 (Cth), Schedule 2

CASE
MIAC v SZQRB [2013] FCAFC 33

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 February 2018 to refuse to grant the visa applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of China, applied for the visa on 30 October 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.

   CLAIMS AND EVIDENCE

   Background

3. In her protection visa application form, the applicant provides the following information. She was born in [Year] in Laixi, Shandong, China. She has resided in her village, [Village], in Laixi, Shandong, all her life.

4. During [Year] to [Year] she attended primary and then middle school, before commencing working in [Year] at a [company] selling [products] in Laixi. She was unemployed from 2007 until the middle of 2015 whilst looking after her child. She then started working at another [company] in Laixi from August 2015 to July 2016.

5. She has been a farmer all her life, along with her parents and grandparents. She has not travelled in the last thirty years. She is not religious.

6. In China, she has a husband whom she married in 2012 and a [child] who was born in [Year]. Her mother and father also reside in China.

7. She arrived in Australia [in] August 2017 as the holder of a visitor visa.

   Evidence before the Department

   Protection visa application

8. The applicant makes the following claims in her protection visa application form:

   ·     She comes from a farming family in [Village] in Laixi, Shandong, China. The family farm has chickens and vegetables that are sold at the local markets.

   ·     [In] March 2016 the Chinese government gave her an eviction order as her farmland was being seized to construct a highway. She was offered 8,000 Chinese Yuan to leave. She was not offered any resettlement arrangements. She thought this compensation was inadequate and refused it. As a result, the authorities hired thugs to start to harass her.

   ·     One day the authorities bulldozed her barn and excavated the crops. All the animals were killed. They also shut down all her electricity, water, and gas to force her to leave.

   ·     About a month after the eviction notice was first given to her the thugs threw bricks at the house and knocked down the front door with sledgehammers in the early morning. She was grabbed by the hair, pushed, beaten, and thrown on the street. Her husband was tortured.

   ·     She no longer felt safe to live in China. She felt her basic human rights had been violated.

   ·     The police could not help because the government is controlled. Opposing the government would put herself and her family in danger of imprisonment. She is aware her friend’s husband is still in prison because he was part of a protest to try to oppose the communist regime.

   ·     She cannot move to another part of the country because she has no place to live outside her city and no close friends she could trust and no family. The Chinese authorities will persecute her even if she relocates inside her country.

   ·     If she were to return to China, she would have no home and she would be punished for resisting and opposing the government. She would want to file a petition to the housing rights committee to explain her situation, but this would put her in more trouble. She would demand resettlement rights, and this would create another problem.

   Interview with the delegate

9. The applicant was invited to attend an interview on 8 February 2018 to discuss her claims, but she did not attend.

   The delegate’s decision

10. On 14 February 2018, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not accept the applicant was being persecuted because of the acquisition of her land or that she faces harm of any kind for such a reason on return to China. They found the applicant is not a person in respect of whom Australia has protection obligations.

    Evidence before the Tribunal

11. On 6 March 2018, the applicant applied for a review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision.

12. On 18 December 2023, the Tribunal wrote to the applicant advising that it had considered all the papers relating to her 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 a hearing on 10 January 2024.

13. On 1 January 2024, the applicant’s representative returned the Response to Hearing Invitation form, indicating that the applicant did not wish to attend the hearing. The applicant ticked the box indicating she did not wish to participate in the hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear. That form was signed but not dated.

14. On 2 January 2024 the Tribunal wrote to the applicant’s representative seeking signed and dated confirmation the applicant consented to the Tribunal making a decision on the papers. On 3 January 2024 the applicant’s representative provided a signed and dated Response to Hearing Invitation form confirming that the applicant did not wish to attend the hearing.

15. To avoid any misunderstanding or change of mind on the applicant’s part, the Tribunal waited until 10 January 2024 to proceed to a decision. The applicant did not appear before the Tribunal on the day and at the time and place she was scheduled to appear and has had no further contact with the Tribunal.

16. This matter has therefore been determined on the evidence available to the Tribunal.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

17. 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.

18. 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.

19. 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).

20. 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.

21. 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

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

    Nationality

23. The applicant claims to be a citizen of China and provided a certified copy of her Chinese passport to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of China. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of China and China is her receiving country for the purposes of assessing her claims for protection.

    Analysis, reasons and findings

24. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

25. It is the responsibility of an applicant for a protection visa to specify all particulars of his or her claim to be owed protection and to provide sufficient evidence to establish the claim: s 5AAA(2) of the Act. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim: s 5AAA(4).

26. The Tribunal formed the preliminary view that there was insufficient material before it to be satisfied that the applicant’s claims to be owed protection were established, and that she faces a real chance or real risk of serious or significant harm on return to China. As the Tribunal was unable to make a favourable decision it invited the applicant to a hearing in accordance with s 425 of the Act. The Tribunal’s invitation to the hearing advised the applicant that it was unable to make a favourable decision on the information before it. Nevertheless, the applicant elected not to attend the hearing and consented to a decision on the papers. The Tribunal accepted any further information up until the time of decision.  

27. Based on the evidence before it, the Tribunal has significant concerns with the applicant’s claims. There is no independent evidence in support of the applicant’s claims, and they are lacking in specificity in many respects. Among the claims on which the Tribunal has insufficient evidence before it is details of the eviction notice the applicant claims was given to her [in] March 2016. The applicant has not provided details of how the order of eviction was issued to her, the specific terms of the order, or the date it took effect. She has not provided details of how she was offered 8,000 Chinese Yuan as compensation to leave the property and who offered her this figure. She has not explained how she refused this sum as being inadequate and what the response to that refusal was. The applicant has not stated if she was told in person or in writing that she would not be assisted with resettlement and whether she sought to challenge this. She has not explained whether it was only her property impacted by the eviction notice or if other farms were also being seized.

28. The Tribunal also has insufficient evidence before it in relation to the harassment the applicant claims she experienced from the authorities after she refused the compensation to move from her property. The applicant has not stated when the authorities hired thugs to harass her, who the authorities were, who the thugs were, and how she initially resisted them. She has not explained how the bulldozer and excavator got onto the farm and whether she tried to resist this, how the barn was bulldozed, how many animals were killed, and whether her house was impacted in any way. The applicant has not explained what the thugs said or did to her family at this time and what she did whilst the farm was being destroyed. She has not explained what she did after the thugs bulldozed her family’s barn, excavated the crops, and killed the farm animals. The applicant has not explained whether her family were able to stay on the farm after this incident and how they managed this. She has not stated for how long the water, gas and electricity were shut off and how they were able to source water and other provisions during this time.  

29. In relation to the claimed attack on her home and family, the applicant has not explained who knocked down the front door of the house one morning with a sledgehammer and who beat her and her husband. The applicant has not explained who grabbed her by her hair, what the extent of hers and her husband’s injuries were, and whether anyone in the family required medical attention after this incident. She has not provided specific details of how she believes her basic human rights were violated. The applicant has not provided details of what she and her family did after they were thrown on the street after this incident and where they went after they left their house. She has not explained if they were harassed by the authorities or thugs again or not and if they went into hiding.

30. There is insufficient information before me in relation to the applicant’s claim’s that she would want to file a petition on return to China to the housing rights committee to explain her situation and that this would put her in more trouble. The applicant has not explained why she did not do this in China, how she would go about this on return to China, what it would achieve, and where specifically this petition would be filed and with whom. It is unclear to me what the applicant means when she claims she would demand for resettlement rights, especially considering the applicant had the opportunity to seek resettlement rights in China after being issued with the eviction notice. The applicant has not explained whether she can seek resettlement rights anymore given the passage of time and why she did not do so when first issued with the eviction notice. The applicant has also not explained why the police cannot help her and the basis on which she believes the government controls the police. The applicant has not explained how she was able to plan to escape China and what her husband and family did until she departed. The applicant has not provided any details about her friend’s husband whom she claims is in prison and how they were arrested. She has not explained why she cannot relocate within China and why she believes she would be persecuted even if she moves within China.

31. In view of the insufficient detail provided by the applicant in her claims, as explained above, the Tribunal is not satisfied of the applicant’s claims. The Tribunal accepts the applicant was born in Laixi and is from a farming village. The Tribunal is not satisfied that the applicant was notified by the Chinese Government [in] March 2016 that her land would be seized, she was being evicted, and she would only receive 8,000 Chinese Yuan compensation and no resettlement arrangements. Given the Tribunal is not satisfied the applicant was being evicted from her property, the Tribunal is also not satisfied the authorities arranged thugs to bulldoze the applicant’s barn, excavate her crops, kill her animals, beat her and torture her husband, violate her basic human rights, and throw her out on the street. The Tribunal is therefore also not satisfied the applicant would, on return to China, want to file a petition to the housing rights committee, demand resettlement rights, or be known to the Chinese government or police. Given this, the Tribunal is not satisfied the applicant’s departure from China was linked with any such past activities or harm, or to avoid potential future harm.

    Does the applicant meet the refugee criterion?

32. The applicant claims after what happened she no longer feels safe to return to China. She claims she will be persecuted by the government, harmed, and be in danger of being jailed. She claims the government controls the police and she would be punished for resisting and opposing the government’s cruel tactics. She claims the authorities will not protect her even if she relocated within China. As outlined above, the Tribunal is not satisfied the applicant was evicted from her property and does not accept her claims she was targeted by Chinese authorities and thugs and her family attacked, her human rights violated, and her family thrown out of their house. The Tribunal does not accept the applicant’s claim therefore that she will suffer harm on return to China in connection to those claimed events. The Tribunal is not satisfied she has been persecuted in China in the past, or that there is a real chance that she will be persecuted in China in the reasonably foreseeable future.

33. Having considered the applicant’s claims singularly and on a cumulative basis and taking into account the findings set out above, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

34. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

35. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

36. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[1]. For the reasons set out above, the Tribunal finds the applicant does not face a real risk of significant harm for any reason. On the evidence before it, the Tribunal is not satisfied 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 she will suffer significant harm.

    [1] MIAC v SZQRB [2013] FCAFC 33

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

   Conclusion

2. As set out 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).

3. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered whether the applicant meets 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).

4. 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

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

   Rachelle Johnston
   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.

   …