1930475 (Refugee)

1930475 (Refugee) [2023] AATA 4777 (28 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1930475
COUNTRY OF REFERENCE:                   China
MEMBER:Roslyn Smidt
DATE:28 November 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 November 2023 at 1:20 PM
CATCHWORDS
REFUGEE – protection visa – China – religion – Jehovah’s Witness – personal connection or commitment to the faith – not baptised – knowledge of the faith – daughter’s medical condition – parents do not approve of marriage – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 October 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who are citizens of China, applied for the visas on 26 October 2017.
[The first named applicant] appeared before the Tribunal on 16 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
BACKGROUND
[The first named applicant] is [age] years old. He last arrived in Australia [in] July 2008 on a student visa which was valid until 28 June 2010. He became unlawful on 29 June 2010. He remained in Australia unlawfully until 26 October 2017 when he applied for protection.
[The first named applicant] married [Ms A] on [date] September 2018 in Australia. She is also an asylum seeker from China.
[The second named applicant] is their daughter. She was born in [year].
CLAIMS AND EVIDENCE
In his application to the Department that applicant said that he had not been able to complete his studies due to his family’s poor economic status. While in Australia he met his partner who shared a common Christian faith with him. After they go married, he had disagreements from his parents over his marriage and career.
[The first named applicant] also claimed that he was a follower of the Jehovah’s Witness religion which is outlawed in China. He provided a number of documents relating to beliefs of the Jehovah’s Witness Church but not further information on his involvement with the faith.
On 31 July 2019 [the first named applicant] provided several photographs of himself, his wife and [the second named applicant] at what appears to be a Jehovah’s Witness Assembly Hall. Based on the clothing wore by [the first named applicant] and his wife and the fact that they include [the second named applicant] they appear to have been taken on two different occasions in 2018.
[The first named applicant] attended an interview with the delegate on 14 August 2019. According to the delegate’s decision, he said that he had ceased his studies because his parents had financial difficulties. He remained in contact with them. He said that his relationship he had spoken to them a week earlier, they were living a normal life and his relationship with them was “not good not bad just normal”. He wanted to repay them for the money they had spent supporting him. Later in the hearing he said that he could not return to China is because his parents had wanted him to marry someone else and he was worried that his wife and parents would not get along.
[The first named applicant] said that his parents did not have any religion. He was aware of Christianity before he left China and had visited some churches there. However, he had not committed to any religion until 2017 when he started following Jehovah’s Witnesses faith. He was introduced to the Jehovah’s Witnesses religion through a friend he met at a party.
[The first named applicant] said that he had applied for a Protection visa because people from his church told him that the Jehovah’s Witnesses religion is forbidden in China and that he would be punished for his beliefs if he returned. He was not sure why Chinese authorities punished Jehovah’s Witnesses followers, but he had heard from other members of the church that this happened. He added that there is no religious freedom and he would not be able to conduct the missionary work required by his faith.
[The first named applicant] said that he had not been baptised because he did not feel that he was good enough. He said that for a Jehovah’s witness baptism meant being recognised by Jehovah. He added that those who can be baptised are the ones chosen by God and are similar to Jesus. He said that he attended a church in [address] in [Suburb 1] and received weekly or fortnightly a couple who taught him about the Bible.
The delegate asked [the first named applicant] why he had not provided any letters of support from elders or members of congregation in support of his application. He said that he did not know if the support letter would make any difference or help with his application.
[The first named applicant] was asked about Jehovah’s Witnesses key beliefs. The applicant said they do not believe that “God, Jesus and Maria are all in one” and they think that “Jehovah and the Holy Bible are different” and should be “separated”. He added that Jehovah’s Witnesses only worship Jehovah and do not celebrate religious celebrations such as Christmas or Halloween. They only celebrate Good Friday, which is the day Jesus sacrificed himself. He said that Good Friday was three days before Easter. When asked why Jehovah’s Witnesses do not celebrate other religious occasions, he said that it was because the Bible said that one should only celebrate Good Friday when Jesus sacrificed himself.
[The first named applicant] was asked if he followed any of the strict rules set out for Jehovah’s Witnesses followers. He responded, “No other worshipping, not receiving blood from others, no bribe and no other bad things, no bad behaviours”. He was asked why Jehovah’s Witnesses are not allowed to receive blood from others. He said that it is “because our blood was given preciously by God and Jesus used his blood to save all the humans so we should not receive blood from other people.” When asked which part of the Bible this rule was based on, he said he could not remember as he had not been asked to memorise the Bible.
[The first named applicant] was asked about his understanding of how Jesus died. The applicant said that Jesus was held up on a “punishment pole” by the Jews. The applicant added that people thought that Jesus was “a bad religion” so they held him up on the pole to “punish” him. When asked for his thoughts on other religions which said Jesus died on a cross, he said that other religions used the cross to “remind” people that Jesus had died for them. Jehovah’s Witnesses viewed Jesus’ death as his “sacrifice to cleanse our sin” which was why he should not be shown on the cross.
When asked why he had not contacted the Department to regularise his immigration status when his visa expired, [the first named applicant] said he thought that he would be forced to return to China and added that he still had to pay money. When asked regarding his why he had not applied for protection until 2017 he said that he had not been aware of the possibility until he joined the Jehovah’s Witnesses and they told him about the possibility. The delegate observed that the timing of [the first named applicant]’s application for protection could lead to the conclusion that he had become a Jehovah’s Witness to support his application for protection. [The first named applicant] said that there might be some relationship between his decision to become a Jehovah’s Witness and his application, but that he really to do missionary work and that it might provide him with an opportunity to apply for a visa.
The delegate accepted that the applicant had attended some Jehovah’s Witness activities and had some understanding of the teachings of the faith, he had not demonstrated a genuine personal connection or commitment to the faith. He did not accept that he was a genuine follower or the religion and therefore did not accept that he had a genuine fear of returning to China because of his religion.
The applicant applied for review of that decision on 28 October 2019. He provided a copy of the delegate’s decision but no submissions.
The applicant attended a hearing of the Tribunal on 16 November 2023.
I asked him to tell me in his own words why he feared returning to China. He said that he had previously been concerned about problems related to his religious beliefs but his daughter had been diagnosed with a rare autoimmune disease. She had been on medication for more that two years and it would be difficult for her to adjust to new environment. He said that she would receive better treatment in Australia and he would have difficulty paying her medical expenses if he returned to China.
I asked [the first named applicant] if he feared that his daughter would face harm or discrimination on return to China because of her illness. He said that she would face discrimination at school because she was weak and not like other children. He said that he was mainly concerned about her treatment at pre-school as young children tease people who are different because they do not know any better. He added that this problems would not occur if she was in high school as children are better behaved by then.
[The first named applicant] showed me a letter which he had on his phone regarding his daughter’s condition. I advised him to forward a copy so I could consider it.
[The first named applicant]’s religion was discussed at the hearing. He confirmed that he was still not baptised. He said that he had attended services regularly before his daughter became ill, but he had been unable to attend since his daughter became ill because she was vulnerable. In addition, the Covid pandemic meant that he could not attend services. He was involved in some online activities and some members of the group had come to his home.
I advised [the first named applicant] that I had doubts about his claims relating to religion. I observed that he had not been baptised, did not appear to know much about the Jehovah’s Witness faith, had not provided any letters of support and appeared to have first become involved at the time he applied to protection. He said that while he might not be a firm believer he believed in religion and the Jehovah’s Witness doctrine. When I asked what he meant by this he said that it was about, he said that it was about your attitude when you were with people and how you treated them.
I noted that [the first named applicant] had previously stated that his parents did not approve of his marriage and might not get along with his wife and observed that this did not appear to be related to any of the reasons for recognition as a refugee or to amount to serious or significant harm. He said that when his wife and mother spoke on the phone, they raised their voices.
Following the hearing [the first named applicant] provided two letters from [Hospital 1] dated November 2023. They confirm that [the second named applicant] diagnosed juvenile dermatomyositis (JDM) in 2021. JDM is rare autoimmune disease that causes a skin rash and weakness in muscles which can be quite debilitating. It is a chronic illness which requires regular doctor’s appointments and ongoing treatments. The letters confirm that [the second named applicant] is currently in remission and doing well. She requires weekly oral medication to treat the illness, quarterly blood tests to monitor for side effects of medications and quarterly appointments to be reviewed by the paediatric rheumatologist.
On 17 November 2023 [the first named applicant] provided a number of pictures of [the second named applicant] before and after she became ill. He said that her resistance was poor, that she was often sick, that she could not go out in the sun and that she had been born in Australia and would not be able to adapt to living in China which would impact greatly on her future.
CONSIDERATION OF CLAIMS AND EVIDENCE
I accept that [the first named applicant] and his family attended some Jehovah’s Witness events prior to 2020. However, I do not accept that he has had any involvement with the group since that time or that he is a genuine or committed following of that faith.
In the first place, he became involved with the faith when he applied for protection, about seven years after he became unlawful in Australia. During his interview with the delegate, he indicated that the fact that the religion would assist him in obtaining visa was a consideration in his decision to become involved.
Secondly, he has never been baptised, appears to know little about the faith, by his own account had not attended services for the last three or four years. While I acknowledge that the Covid pandemic and his daughter’s illness may have impacted on his ability to attend services, I do not accept that he would have failed to attend at least some if he was committed to the faith. In addition, apart from a few photographs which suggest that he attended Jehovah’s Witness events of some kind in 2018, he has provided no evidence of his involvement with the group in Australia. And at the hearing he confirmed that he was not a firm believer.
As I do not accept that [the first named applicant] is a Jehovah’s Witness. There is no suggestion that he follows any other Christian faith. It follows that I do not accept that he would seek to practice that faith if he returned to China. It follows that I do not accept that he will be denied the right to practice his faith if he returns to China or that he would face serious or significant harm as a result of practising or attempting to practice his faith in China.
[The first named applicant] has not claimed that he would be at risk of harm on return to China merely because he attended some Jehovah’s Witness events in Australia at some time between late 2017 and mid-2019. Nevertheless, I have considered that possibility. It appears that the Jehovah’s Witness faith is not accepted in China and that active practitioners may face a range of problems including serious harm. However, [the first named applicant] is not a Jehovah’s Witness. At most he attended several events some four or five years ago. I find it highly unlikely that the Chinese authorities would be aware of [the first named applicant]’s extremely limited involvement with the Jehovah’s Witness faith in Australia. Furthermore, the available evidence suggests that the Chinese authorities are interested in those who engage in certain unapproved religious practices in China, not attendance at a few events held some years ago in Australia.
I am not satisfied that [the first named applicant] faces a real chance of real chance of suffering serious or significant harm if he returned to China now or in the reasonably foreseeable future merely because he has attended a small number of Jehovah’s Witness events.[1]
[1] For information on religion in China see DFAT Country Information Report 22 December 2021 and DFAT Thematic Report Unregistered religious organisations and other groups in the People’s Republic of China 3 March 2015
[The first named applicant] has submitted that [the second named applicant] would suffer if he returned to China because she was born in Australia and she would be unable to adjust to life in China there. In addition, she has an autoimmune disease which requires continuing treatment. He claims that the treatment she would obtain in China would not be of the same standard as the treatment she would receive in Australia and that he would have difficulty paying for her treatment if they returned to China.
I acknowledge that [the second named applicant] has an auto-immune disease which requires continuing treatment and that she may be unable to obtain the same level of care in China as she has had in Australia. However, there is nothing in the evidence which suggests that she would be denied treatment available to others in China for any reason. The only other harm or disadvantage which [the first named applicant] suggested she might face was the possibility that other kindergarten aged students might tease her because they do not know better. In my view teasing by kindergarten students because they do not know better does not amount to serious or significant harm. In addition, report on kindergarten teachers in China published in the Early Childhood Research Quarterly in 2015[2] indicates that aggressive behaviour by kindergarten student is not tolerated, which suggests that there is not a real chance that [the second named applicant] would experience serious or hurtful teasing from other kindergarten students.
[2] Chinese kindergarten teachers’ beliefs about young children’s classroom social behavior - ScienceDirect

On the evidence currently before me I am not satisfied that [the second named applicant] faces a real chance of experience serious or significant harm if she returns to China now or in the reasonably foreseeable future because of her illness or for any other reason.
For the sake of completeness, I note that there is no suggestion that [the first named applicant] would suffer serious or significant harm for any reason associated with [the second named applicant]’s illness. I am not satisfied he faces a real chance of experience serious or significant harm for that reason if he returns to China now or in the reasonably foreseeable future.
[The first named applicant] has also claimed that he might face problems if he returns to China because his parents do not approve of his marriage. The only specific issue raised at the hearing in relation to this claim was the fact that his wife and mother raised their voices when the spoke on the phone. While this may be true, it clearly does not constitute serious or significant harm of the [the first named applicant] or [the second named applicant].
There is nothing in the evidence before me which suggests that there is a real chance that [the first named applicant] or [the second named applicant] would suffer serious or significant harm if they return to China now or in the reasonably foreseeable future because [the first named applicant]’s wife and mother do not get along.
After considering all of the applicants’ claims individually and cumulatively, I am not satisfied that either of them faces a real chance of experiencing serious or significant harm if they return to China now or in the reasonably foreseeable future. I am therefore not satisfied that either of them has a well-founded fear of persecution in China in the reasonably foreseeable future or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that either of them will suffer significant harm.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Roslyn Smidt
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 4777

28 November 2023

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