2015025 (Refugee)

[2024] AATA 4086

2015025 (Refugee) [2024] AATA 4086 (25 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015025

COUNTRY OF REFERENCE:                   China

MEMBER:J Horsley

DATE:25 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 September 2024 at 12:50pm

CATCHWORDS
REFUGEE – protection visa – China – land/housing dispute – refused to have home demolished – paganism – vague claims and lack of supporting evidence – consent to decision without hearing – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 35(2)(a), (aa), (2A), 65, 425(2)(b)
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 8 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant, who claims to be a citizen of the People’s Republic of China (herein China), applied for the visa on 19 January 2018.

   CRITERIA FOR A PROTECTION VISA

2. 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, they are 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.

3. 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.

4. 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).

5. 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.

6. If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they 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

7. 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.

   CLAIMS AND EVIDENCE BEFORE THE DELEGATE

   Protection visa application

8. According to the applicant’s protection visa application, she is a [Age]-year-old Chinese national of Han Chinese ethnicity. She claims to be a paganist. The applicant left China [in] October 2017 and arrived in Australia on the following day.

9. In response to questions in the Protection visa application in relation to her reasons for claiming protection, the applicant claimed that she left China because she refused to have her home demolished and had a ‘conflict’ with ‘others.’ The applicant attempted to relocate within China but ‘there are a lot of great forces.’

10. If she returns to China, the applicant fears being bullied and beaten because of the past ‘conflict with them.’ The authorities will only give a ‘verbal warning’ to ‘those who conflict with the applicant.’ The applicant is unable to relocate within China to avoid the harm she fears because ‘too many people’ want to hurt her and their ‘strength is too great.’  

11. In support of her Protection visa application, the applicant provided a copy of her Chinese passport. 

    The decision of the delegate

12. As stated above, on 8 October 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa. The delegate did not offer the applicant an interview.

13. In essence, the delegate assessed that, based on country information, the Chinese Communist Party (CCP) and local authorities do not tolerate organised opposition and those who raise sensitive topics may be subject to surveillance. However, the delegate found that the applicant’s claims lacked detail and supporting evidence, noting that the applicant did not respond to a Department letter to the applicant requesting that information, under s 56 of the Act. For these reasons, the delegate did not accept that the applicant participated ‘in the activities, or suffered the kinds of adverse treatment or harassment in China as claimed.’

14. Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.

    CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL

15. On 8 October 2020, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

16. On 8 November 2023, the applicant emailed the Tribunal with a Form MR6 ‘Change of Contact Details’, in which she updated her email address. With the email, the applicant provided a copy of her passport and a copy of her Victorian Driver’s Licence. The form indicated that her mobile telephone number remained the same as the number provided in her application for review, as well as her Protection visa application form. In the body of the email, the applicant stated that her friend lodged her application for review, using their contact details. She stated that she has lost contact with her friend. The Tribunal subsequently updated the applicant’s email address accordingly.

17. On 17 June 2024, the Tribunal emailed the applicant with a link to a ‘Pre-hearing Information Form’, requesting that she complete it within 7 days. The Tribunal did not receive a completed form from the applicant.

18. On 4 July 2024, the Tribunal sent the applicant via email an invitation to attend a hearing under s 425 of the Act, scheduled for 26 July 2024. The invitation stated that if they did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application or the information before it. The invitation also requested that she complete and return an enclosed ‘Response to Hearing Invitation’ within 7 days.

19. On 19 July 2024, the Tribunal sent the applicant a SMS reminder of the hearing.

20. On 25 July 2024, one day before the scheduled hearing, the applicant sent the Tribunal a completed ‘Response to Hearing Invitation’ form via email. In the covering email, the applicant stated, ‘I will not attend the hearing.’ In the form, in response to a question about whether she will take part in the hearing scheduled for 26 July 2024, the applicant marked the box with the following wording:

    ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear.’

21. In the form, the applicant provided her mobile telephone number and email address, which matched the contact details on the Tribunal’s file. The applicant did not answer the remaining questions in the form (e.g., if there are any issues that would impact on her ability to participate in the hearing; whether she requires an interpreter; whether she intends to rely on any documents during the hearing; and whether she would like the Tribunal to take oral evidence from any witnesses).

22. On 25 July 2024, the Tribunal sent the applicant a letter to her email address, stating:

    ‘I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Protection visa.

    Thank you for your email.

    On 4 July 2024, the Tribunal sent you an email with an invitation to attend a hearing, scheduled for 26 July 2024 at 9.30am, as required by 425(1) of the Migration Act (the Act).

    The invitation letter stated, ‘We have considered the material before us but we are unable to make a favourable decision on this information alone.’

    Under section 425(2)(b) of the Act, the requirement to hold a hearing does not apply if an applicant consents to the Tribunal deciding the review without the applicant appearing before it.

    On 24 July 2024, you emailed the Tribunal with a ‘Response to Hearing Invitation’, in which you indicated that you do not want to participate in the hearing. You indicated that you consent to the Tribunal making a decision on the papers without taking further steps to allow you to appear.

    The Tribunal has taken your email of 24 July 2024 as your consent to the Tribunal deciding the review without you appearing before it. The Tribunal will make a decision without holding a hearing in accordance with s 425(2)(b) of the Act.

    If this was not your intention, and you do want a hearing, contact us immediately at [email protected], or call 1800 228 333.’

23. The Tribunal sent this email to the email address registered on the Tribunal’s file, which the applicant updated on 8 November 2023 (see above). There are no indications that this email failed to be delivered to the applicant or was returned to sender. To date, the applicant has not responded to the 25 July 2024 email from the Tribunal.

24. There are no indications that the applicant appeared on the Tribunal premises on the day of her scheduled hearing, 26 July 2024.

25. In these circumstances, the Tribunal is satisfied that the applicant has consented to the Tribunal deciding the review without the applicant appearing before it, pursuant to s 425(2)(b) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Application for review

27. In her application for review, the applicant indicated that she applied to the Tribunal for a review of the delegate’s decision in granting her a Bridging Visa A on 8 October 2020. The Tribunal understands that the applicant made a typographical error when completing her application for review, and notes that she provided a copy of the delegate’s notification letter refusing her application for a Protection visa, as well as the decision record, which are both dated 8 October 2020. The Tribunal also notes that the applicant’s Bridging Visa A was granted, according to the Department file, on 5 February 2018.

28. Despite the abovementioned typographical error, the Tribunal finds that the applicant lodged a valid application for review of the delegate’s decision on 8 October 2020 to refuse to grant the applicant a Protection visa.  

    Paganism

29. In her Protection visa application, the applicant listed her religion as ‘paganism.’ However, the applicant provided no other information about her claimed beliefs. She did not say what she meant by the word ‘paganism.’ For example, she did not say whether she is an atheist or a follower of a folk religion, a non-organised religion, a minority religion, or a new religious movement, known as xie jiao in China.[1]

    [1] DFAT, Country Information Report: China, 22 December 2021, at [3.53].

30. According to the United States Department of State’s 2023 Report on International Religious Freedom, published in June 2024, some 52% of the total population in China are atheists or unaffiliated persons and some 22% of the total population follow folk religions.[2]

    [2] US Department of State, 2023 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang), available at:

31. On a person’s ability to practice their faith in China, DFAT stated in 2021 that it depends on:

    ‘…whether the individual worships in registered or unregistered institutions, whether they practise openly or privately, and whether an individual’s religious expression or the religion itself is perceived by the CCP to be closely tied to other ethnic, political and security issues. Adherents of Buddhism (except Tibetan Buddhism), Confucianism, Daoism, folk religions, and syncretic combinations of these that do not have influences from ‘foreign religions’ and that are not associated with other foreign influences, are unlikely to experience significant restrictions.’[3]

    [3] DFAT, Country Information Report: China, 22 December 2021, at [3.27].

32. The applicant has not claimed to have suffered any past harm, including any discrimination, differential treatment or harassment, for reasons of her religion or lack thereof or her beliefs. She did not say whether she practices her faith or beliefs in a registered or unregistered institution. The applicant did not say whether she practices her faith or beliefs openly or privately, or whether her faith or beliefs are closely tied to other ethnic, political or security issues, or whether they would be perceived to have those ties by the CCP. There is no information before the Tribunal to indicate that her belief in ‘paganism’ is associated with other foreign influences.

33. Based on the very limited information and evidence available about the applicant’s claimed religion or lack thereof or her beliefs, the Tribunal does not accept there is a real chance the applicant will face serious harm for these reasons if she returns to China now or in the reasonably foreseeable future.

34. Further, the applicant has not expressed any subjective fears of harm for reasons of her religion or lack thereof or her beliefs, if she returns to China now or in the reasonably foreseeable future, and, as such, she does not meet the criteria in s 5J(1)(a) of the Act, as she does not fear persecution.

    Han Chinese ethnicity

35. In her Protection visa application, the applicant listed her ethnicity as Han Chinese. There is nothing before the Tribunal to doubt the applicant’s claims in this regard. As such, the Tribunal accepts that the applicant is of Han Chinese ethnicity. Despite this, the applicant has not claimed to have suffered any past harm, including any discrimination or harassment, for reasons of her ethnicity. Therefore, the applicant has not expressed any subjective fears of harm for reasons of her ethnicity if she returns to China now or in the reasonably foreseeable future, and she does not meet the criteria in s 5J(1)(a) of the Act, as she does not fear persecution.

36. Even if the Tribunal accepted (which it does not) that the applicant holds a subjective fear of harm for reasons of her ethnicity, the Tribunal finds that there is not a real chance she would be seriously harmed for this reason if she returns to China now or in the reasonably foreseeable future. The Tribunal makes this finding on the basis of country information from DFAT, which indicates that the Han ethnic group comprises some 92% of the population and is ‘socially, politically and economically dominant.’[4]

    [4] Ibid, at [3.1].

    Housing / Land Dispute

37. The applicant provided very limited information about her claims of refusing to have her home demolished. She did not say where her home was located, why it was to be demolished, nor whether her home was in fact demolished. The applicant did not say who was responsible for demolishing or planning to demolish her home. The applicant stated that due to this housing or land dispute, she had a ‘conflict’ with ‘others.’ However, she did not say what the conflict was or with whom. She claimed to have attempted to relocate but did not say where she attempted to relocate, nor why she was unsuccessful in her attempts. The applicant only claimed that she could not relocate because ‘there are a lot of great forces.’ The applicant did not elaborate on this claim or say what she meant by ‘great forces.’ She claimed that if she returns to China ‘too many people’ want to harm her and their ’strength is too great.’ She did not elaborate further, or identify who the ‘people’ are, why they have ‘strength’ and why it is ‘too great.’ The Tribunal finds the applicant provided vague and evasive claims about her claimed housing or land dispute with very limited information.

38. The delegate found that the applicant’s claims lacked detail and supporting evidence, noting that the applicant did not respond to a Department letter to the applicant requesting that information, under s 56 of the Act. Since her application for review, the applicant has not provided any further material or evidence to the Tribunal to support her claims for protection. Given the very limited information and evidence available, the Tribunal does not accept that the applicant refused to have her home demolished; that she had a ‘conflict’ with ‘others’; that she attempted to relocate within China but ‘there are a lot of great forces’; or that there are ‘too many people’ that want to harm her and that their ‘strength is too great.’

39. On the very limited information and evidence available, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for reasons of her race, religion, nationality, political opinion, or membership of a particular social group if she returns to China now or in the reasonably foreseeable future.

40. On the very limited information and evidence available, the Tribunal is not satisfied that there are substantial reasons 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.

    CONCLUSIONS

41. 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).

42. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

1. 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

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

   J Horsley
   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.

   …