2007843 (Refugee)

[2024] AATA 2933

2007843 (Refugee) [2024] AATA 2933 (3 July 2024)

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DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2007843

COUNTRY OF REFERENCE:                   China

MEMBER:Scott Collins

DATE:3 July 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 03 July 2024 at 12:54pm

CATCHWORDS
REFUGEE – protection visa – China – colleague used applicant’s ID to apply for loan – threatened by gangsters hired by underground bank – police inaction – relocation and ongoing threats to family – no further information provided and consent to decision without hearing – country information – legislation and enforcement – decision under review affirmed

LEGISLATION  
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), (5), 5L, 36(2)(a), (aa), (2A), 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 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 21 April 2020 to refuse to grant the 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 23 September 2019. The delegate refused to grant the visa on the basis that applicant was not a person to whom Australia owes protection obligations as outlined in s 36(2)(a) and s 36(2)(aa) of the Act.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. 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

   Background

9. The applicant’s 2019 application for a protection visa contained the following background information:

   -he was born in [Year] in Hubeu Sheng Province, China;

   -he was married with [children] and they were living in China;

   -his parents and his [siblings] were living in China;

   -he last lived in Hunan Sheng Province from 1999 to 2019;

   -he completed his education to middle school level;

   -he was last employed in China [an occupation] at [a] factory, from January 2016 to December 2018;

   -his only language was Chinese (Mandarin)

10. He arrived in Australia in August 2019 and lodged the application in September 2019. The department refused his application in May 2020.

11. The applicant indicated in his response to the pre-hearing information form in June 2024  that he did not want to attend a hearing and that he was content to have the Tribunal make the decision on the papers.

12. The Tribunal finds that the applicant must have received substantial assistance in completing the application, given that his only language was Chinese.

    Protection Grounds

13. There is no further, more up-to-date information from the applicant about his case and nothing capable of corroborating what was written for him in his application. In the application, the following was written as his grounds for protection:

    After I starting working at [a] Factory in Guangdong Province, one of my close colleagues promised to help me to apply a job in a company. He asked me to give him my National ID so that he could show it to the company manager. I did so because I trusted him so much. However, he used my ID to apply a RMB 1,000,000 loan from a Chinese underground bank. After that, he disappeared without telling me anything. I found out that when the gangsters came to me with all the loan documents. They were hired by that underground bank. I told them I would not pay any money to them because I was trapped by my friend. Since then, I got threatened by them everyday.

    These gangsters stalked me everyday. They called my mobile number more than 10 times a day. Parked the car next to my place every morning. They even left boxes with dead rooster's heads and mice on my door mat many times. Once they posted a notice outside our building to expose my family's privacy and tell public that I had a RMB 1,000,000 Loan. I took that notice off right after I saw it. But the notice appeared again the next morning. I got so frustrated.

    I went to Police Office to report this case. Police told me they couldn't do anything because I didn't have enough evidence to prove these gangsters did that. However, I got another threaten from these gangsters after I reported them to the police. They told me that they had someone who had positions in the police office and government. So the police would not accept my case.

    Since the police could not help me, I decided to do something to protect myself. I tried changing my mobile numbers for 5 times. But these gangsters could always found out my new numbers. Also, I went back to my home in Hunan Province to escape from them. But they even appeared in front of me outside my house. Then I realized that they must have someone in the police office because they could always find out my personal details and my travel records. After all these things happened to me, I made a decision to go overseas. They could not come to Australia for threatening me anymore.

    I thought these gangsters would give up eventually. However, they kept doing everything to my family until now. My wife told me not to go back to China because these gangsters would not let me get away if I went back to China.

    If I do not pay back the money to the underground bank, these gangsters will never stop threatening me in China. They will destroy my reputation and life. They will find me for sure even I move to another city in China. The friend who trapped me into this case is still missing. And I am the only one targeted by these gangsters. I did not borrow that money from the underground bank and plus I do not have that much money to pay them back. As the high interest rate which is 3% set by the underground bank , the amount is much higher than before. I am so stressed and I cannot return to China.

    As I mentioned before, they have someone in the police office and government, which is just like a "protective umbrella" to cover their criminal behaviour. The corruption in China has a very high level. People who has high position in the government often get involved with these dirty money business.

    I have tried to go back to my hometown to get rid of them. But they did track my domestic travel records and found me. Even I changed mobile number without telling anyone except my family, they found out that and called me the next day.

    Loan Sharks in China

14. The 2021 DFAT Country Report has this to say about loan sharks:

    3.122     Usury has a long history in China. According to the South China Morning Post, ‘demand for private loans’ is strong today. This is due to small businesses in particular being unable to access enough credit from large banks. In modern times, loan sharks might be known by different names such as ‘private finance companies’ and are more likely to be active in poorer, rural areas.

    3.123     Some protection is available to debtors. ‘Usurious loans’ are prohibited under China’s Civil Code, which came into force 1 January 2021, but the interest rate considered usurious is not defined in that legislation. The courts have capped interest rates at four times the official rate. A number of highly publicised violent crimes related to debt collection were discussed in the media in 2017 with police making arrests and people being convicted for serious crimes such as assault and sexual assault related to debt collection. DFAT is also aware of a 2018-20 crackdown by authorities on usury, which was highly public and which saw the prosecution of a large number of people.

    3.124     Loan shark operations may be large-scale, but police operations are also large scale. In 2019, 253 suspects were arrested in a campaign against loan sharks in Lanzhou. The gang had over 1,300 mobile phone applications and websites to facilitate usurious moneylending. The Chinese Government claims that 41,000 suspects have been detained in 2021, but it is not clear if this is only during the recent crackdown, or if it includes previous arrests.

    3.125     DFAT assesses that loan sharks are active in China, but assesses that state protection is available. DFAT considers that victims of loan sharks have a plausible fear of violence but that overall the risk is low.

15. There are these comments in the DFAT report about the effectiveness of the Chinese police:

    5.2         Police maintain public order and social stability, which are overriding priorities for the CCP.  Loyalty to the Party is important among police ranks, as it is in all government positions. Police, including at lower levels, can be investigated for corruption (which is a threat to stability and Party legitimacy) and loyalty offences.

    5.3          Police carry out day-to-day crime fighting activities and investigate crimes. Day-to-day crime rates are low in China but where crime does occur, DFAT understands that police investigate thoroughly and prosecute alleged criminals...

    5.5         Police have access to enormous amounts of data and other evidence. Social media is monitored and an unprecedented number of closed-circuit television cameras have been rolled out during the COVID-19 pandemic as part of efforts to control the virus.

16. According to the Dept of Hone Affairs, Common Claims People’s Republic of China, Country of Origin Information Services Section (COISS), December 2023:

    Loan sharks and organised crime groups remain active. On 1 January 2021, legislation came into force under China’s Civil Code that prohibited ‘usurious loans’. However the legislation does not  define what is considered to be a usurious interest rate.400 Loan sharks are known to use ‘nude’ loans (where a person is forced to provide naked pictures of themselves as collateral) , 401 unlawful detention  and violence,  and some women were reportedly forced into prostitution to repay debts. In March  2021, a gang of loan sharks was found to have caused the deaths of 89 people after they hired debt  collection companies to harass and intimate borrowers who had no feasible avenue to pay off their  obligations.

    Police continue to crack down on loan sharks. A 2018 to 2020 law enforcement campaign  targeted ‘black society gangs’, extortion, prostitution and gambling, among others. 405 In both 2019 and  2021, it was claimed by the Chinese government that 41,000 suspects had been detained, though it is not clear if these arrests include previous year’s numbers.

    State media reported in July 2022 that  the broader campaign against gang-related crime between 2018 and 2021 resulted in the indictment of 230,000 individuals ‘engaged in mafia-like gangs and other crimes,’ in addition to 2,987 of their ‘protectors.’407 In February 2023, state media further reported that 14,000 people were prosecuted for organised crime in 2022, as guided by the newly implemented Anti-Organized Crime Law,408 overall. resolving 20,000 organized crime cases.’409 Police generally have the capacity to deter and investigate crimes although may rely somewhat on technology and surveillance tools, and urban law enforcement forces are better resourced and trained than rural forces.

    Findings

17. The Tribunal accept that the applicant is a citizen of China. China is therefore his receiving country under the protection provisions of the Act.

18. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim. 

19. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim. The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim. This is consistent with the established proposition that it is for the applicant to make his or her own case.

20. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant. 

21. However, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims. A similar approach is taken in the Department’s Refugee Law Guidelines and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook. In this case, the applicant claims that he fears threats of violence, actual violence, and harassment from loan shark gangs if he returned to China. The Tribunal accepts that this would amount to serious harm within the meaning of sections 5J(4) and (5) of the Act.

22. In this case, the applicant claims that he fears threats of violence, actual violence, and harassment from loan shark gangs if he returned to Vietnam. The Tribunal accepts that this would amount to serious harm within the meaning of ss 5J(4) and (5) of the Act.

23. However,  the Tribunal finds that  the serious harm is not relevant persecution because it would not be directed at the applicant for any of the reasons set out in 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion). It might be argued that the applicant is member of a particular social group, ‘persons who use loan sharks’. However, the use of loan sharks in China is very widespread. The Tribunal finds that there are no common characteristics shared by persons who use loan sharks, as required by section 5L of the Act, other than that may be subject to threats and violence; and, under s 5L, the persecution itself cannot be the common characteristic. Therefore, the Tribunal concludes that the serious harm alleged to be feared by the applicant is not persecution within the meaning of section 5J of the Act.

24. Further, there is no evidence that there is a real chance that the applicant would in fact experience any harm now or in the foreseeable future if he returned to China. According to the application, the loans appear to have been obtained in when he started at the [factory] in January 2016 . There is no recent or reliable evidence at all as to whether, in the last 8 or so years, the loan shark in this case would still be interested in the debt, or looking for him, or whether they are in business, arrested and imprisoned, or even alive. As this is a forward-looking process, there is therefore no evidence at all upon which the Tribunal could be satisfied that there is a real chance of serious harm, now or in the foreseeable future, if the applicant returned to China.

25. Thirdly, there is effective state protection available to the applicant. There is a pattern of substantial police activity directed at  disrupting, investigating and prosecuting loan shark gangs in China. There are general laws which can be used to investigate and punish loan sharks and to protect the applicant. Within the meaning of section 5L of the Act, the Tribunal finds that the applicant could access the protection, the protection would be durable; and the protection would consist of an appropriate criminal law, a reasonably effective police force, and an impartial judicial system.

26. Accordingly, the Tribunal finds that the applicant does not have a well-founded fear of persecution. Therefore, the Tribunal is not satisfied that he is not entitled to protection under s 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION

27. The Tribunal has found that there is no real chance of the applicant experiencing serious harm if he returned to Malaysia under the section 36(2) (a) refugee criteria. The test in the case of the complementary protection criterion in s 36(2) (aa), real chance of significant harm, is effectively the same as the ‘real chance’ test. Having found that there is no real chance of serious harm, the Tribunal finds there is no real risk of the applicant experiencing significant harm if her were returned to Malaysia under the complementary protection criterion.

    CONCLUSION

1. 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

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

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).

   Scott Collins
   
   

   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.

   …