2015337 (Refugee)

[2024] AATA 3902

2015337 (Refugee) [2024] AATA 3902 (26 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2015337

COUNTRY OF REFERENCE:                   China

MEMBER:Hee-Jung Kim

DATE:26 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 August 2024 at 1:34pm

CATCHWORDS

REFUGEE – Protection Visa – China– applicant did not attend a hearing – lack of details and corroborating evidence – land dispute with government – applicant does not have a well-founded fear of persecution –credibility concerns – not satisfied that there is a real chance that the applicant will face serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 499

Migration Regulations 1994, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 September 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 4 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligation.

3. On 15 October 2020, the applicant applied for review of the delegate’s decision to the Tribunal and provided a copy of the decision with his application for review. Since lodging his review application, the applicant has corresponded with the Tribunal to update his contact details and request Medicare letters, but he has not provided further material or documents in support of his protection claims to the Tribunal.

4. On 5 August 2024, the Tribunal invited the applicant to appear before it on 26 August 2024 to give evidence and present arguments in relation to the issues under review because it considered that it could not decide the review in the applicant’s favour on the basis of the material before it. The invitation was emailed to the applicant’s nominated email address provided in his signed Change of Contact Details form emailed to the Tribunal on 8 October 2023 with a copy of his passport biopage.

5. On 19 and 23 August 2024, the Tribunal sent SMS reminders about the hearing scheduled on 26 August 2024 to the applicant’s mobile number which he provided to the Tribunal.

6. The applicant did not appear before the Tribunal on the day of the hearing at the scheduled time and place. There is no evidence that the applicant contacted the Tribunal to explain his non-appearance or to seek an adjournment. On the day of the hearing, the Tribunal Registry staff made several checks of the Tribunal premises prior to and after the time of the scheduled hearing but the applicant was not present.

7. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing and notified of the scheduled date, time and place. The applicant failed to appear and has not provided any reasons for his non-appearance. In these circumstances, the Tribunal has decided to make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

8. 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.

9. 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.

10. 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).

11. 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-5LA, which are extracted in the attachment to this decision.

12. 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

13. 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 (the Department), 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

14. The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm if he returns to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Nationality

15. The applicant claims to be a citizen of China and provided a copy of his Chinese passport issued on [date] 2017 to the Department and the Tribunal. The delegate was satisfied of the applicant’s identity and that he is a citizen of China. In the absence of evidence to the contrary, the Tribunal is satisfied that the applicant is a citizen of China and that China is his receiving country for the purposes of assessing his claims for protection.

    Evidence before the Department

16. In his protection visa application, the applicant provided that he was born in [year] in Tonghua county, Jilin province. He claimed that he married in 1986, but he did not provide his wife’s details. He only provided the details of his 2 unmarried sons (born in [year] and [year]) who reside at an address in [Village 1]village, [Town 1] town, Tonghua county, Jilin province. He did not provide the details of any other family members. He only provided one Chinese address for the period of [his birth] to September 2017, being the same [Village 1] village address where his sons reside. He claimed that he had no religion, and that he completed primary school in [Village 1] village in July [year], after which he worked as a farm worker in [Village 1] village until September 2017. He claimed that he bribed a government official to get his passport. He departed from Shenzhen on [date] September 2017 and arrived in Sydney on [date] September 2017.

17. In relation to his reasons for leaving China, the applicant claimed that his life and safety were at risk because the Chinese government and corrupt officials took his land and home for their benefits, and he and his family depended on his income from farming for living. He expanded on his claim in an undated statement, which is summarised as follows:

    ·In early 2017 his home in [Village 1] village was demolished without his permission. More than 200 government officials including police, special police, city council officials and demolition and relocation officers came and demolished his house and destroyed his farm. The applicant wanted to stop them and they hurt him. He contacted police officials and stayed in the police station for several hours. After he left the police station he went to a hospital. The police never put charges to those people who hurt him.

    ·The applicant grew vegetable on a small piece of land and sold the vegetable for life. The [Town 1] town government sold their land to a developer called [Company 1] corporation. The compensation offered was 159 Yuan per square meter. However, for rich and powerful families, the government paid 1000 Yuan per square meter for the same land.

    ·The applicant and other villagers sat in front of the town government buildings to protest. The police arrested them because many local government officials were corrupt and afraid of protests against them. The officials set obstacles for their petition. The applicant was released after 2 weeks and he didn’t have a home any more. He built a tent and lived around his home and his wife and children went to their grandparents’ place temporarily.

    ·For several months before he came abroad, he was threatened and harmed. Police threatened to arrest him for the rest of his life if he protested again. He was so scared and decided to go overseas. If he returns to China, he will be persecuted by the Chinese government and police because many local government officials are corrupt.

18. On 19 August 2020, the Department wrote to the applicant to request more information regarding his protection claims. The Department invited the applicant to provide evidence including copies of land documents/title deeds for the property which the applicant’s claimed unfair compensation dispute is about, any offers of compensation the applicant received, any letters or petitions the applicant sent to government officials about the claimed dispute, any arrest warrants/charge sheets for his claimed arrest, and documents or medical records regarding past injuries related to this dispute. The Department also requested the applicant to provide detailed information as to how he was able to arrange his travel document, plane ticket and departure from China, an explanation of the current status of his property/land, and an explanation of how he was able to depart China in the event he was of interest to the Chinese authorities.

19. The applicant did not respond to the Department’s request for more information or provide any additional evidence to support his claims.

    Delegate’s decision

20. The delegate had regard to the country information indicating that the Chinese government maintains a system of border controls and sophisticated technology with high surveillance capability that prevents persons of interest departing the country, and that an ordinary citizen would find it difficult to bribe border protection agents because of sensitivities to corruption and the professional and comparatively well-paid status of public security officials. Based on the lack of detail from the applicant regarding his claims and in light of the country information, the delegate found that the applicant was not a citizen of a significantly high profile which may enable him to exert influence over border officials and to bypass established controls, and the delegate was not satisfied that the applicant participated in the activities, or suffered the kinds of adverse treatment or harassment in China as claimed, nor that he has any profile that would be of adverse interest to the Chinese authorities or anyone else if he returns to China in the foreseeable future. Accordingly, the delegate was not satisfied that the applicant has a well-founded fear of persecution in China for any of the reasons in s 5J(1)(a) or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to China, there is a real risk the applicant will suffer significant harm as outlined in s 36(2)(aa). 

    Evidence before the Tribunal

21. As already noted above, the applicant has not provided any additional evidence to the Tribunal in support of his protection claims since lodging his application for review. He also did not respond to the Tribunal’s request for pre-hearing information emailed to him on 21 May 2024.

    Reasons and findings

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

23. The Tribunal has reviewed all of the material in the Departmental and Tribunal files. The limited evidence which only consisted of some information about his background and general claims, lacks important details and corroborating material to satisfy the Tribunal of the applicant’s claims. The applicant did not respond to the Department’s request for specific details and supporting documents relating to his claims, and despite being alerted to the delegate’s concerns regarding the lack of details and corroborating evidence to be satisfied of his claims in the decision record, a copy of which he provided to the Tribunal with his review application, he has not provided any additional material to the Tribunal to support his claims or to address the delegate’s concerns since lodging his review application.

24. For example, his protection claims do not set out a clear timeline of the claimed events other than vaguely stating that his home was demolished in ‘early 2017’ and that he was released from the police after 2 weeks. It is not clear from the vague written claims whether he received any compensation and what has happened to his home and land. According to his statement, after his home in [Village 1] village was destroyed his wife and children went to their grandparents’ place, but in his protection visa application, he only provided one address in [Village 1] village where he lived from birth until departing China and where his children continue to reside which appears to suggest that his home was not destroyed as claimed and his family remain living there. His claim that more than 200 government officials including the police came, demolished his house and farm and hurt him when he wanted to stop them, also appears at odds with the claim that he contacted police officials because it is unclear why he would report to the police to charge the government officials who harmed him when those officials included the police themselves.

25. It is not at all clear from the written material whether the applicant in fact made a petition or was prevented by the officials, where he was detained and what happened during the claimed 2-weeks detention, and the frequency of the claimed threats from the police in the months preceding his departure from China. He also has not explained how he bribed a ‘government official’ to obtain his passport and how he was able to depart China when according to his claims he appears to have been of adverse interest to the government.

26. To date, the applicant has not provided any corroborating evidence such as evidence of ownership of his home and land, evidence of the destruction of the home and land, a copy of the terms of compensation offered, independent information about the [Town 1] government’s sale of land to a developer called [Company 1] corporation, medical documents from the hospital for any injuries he suffered, or a copy of any petition to substantiate his vague written claims. He also has not provided any information about the other villagers who protested with him, for example, whether they were also threatened and harassed by the government and the police. There is also no updated information about his family, including for example, whether they have been contacted by the government officials for the applicant’s whereabouts, whether they have returned to the village, and whether they have also been threatened and harassed by the government and the police.

27. The applicant did not attend a hearing before the Tribunal to clarify the above concerns or to provide more detailed oral evidence about his claims, and there is insufficient evidence before the Tribunal to be satisfied that any of the claimed events occurred to the applicant.

28. In light of the above and having regard to the available material, the Tribunal does not accept the applicant’s claims in relation to his reasons for seeking protection. The Tribunal is prepared to accept that the applicant is from [Village 1] village, [Town 1] town, Tonghua county, Jilin province, went to school and lived there with his family until he left to come to Australia on [date] September 2017. On this basis, the Tribunal is prepared to accept that the applicant has his home and land which he farms in [Village 1] village. However, the Tribunal does not accept that his home was demolished and his land was destroyed by the [Town 1] town government or any other government officials. It does not accept that the applicant’s land was sold by the government to a developer and the applicant was only offered an unfair compensation for the land. As the Tribunal rejects the applicant’s claim that his home/land was taken, destroyed, demolished or sold by the government against his will, it does not accept that the applicant was hurt by the government officials or anyone else in relation to this land dispute, that he went to a hospital for the injuries, or that he reported to the police but the police did not charge those who hurt him. It follows that the Tribunal rejects the applicant’s claim that he protested with other villagers by sitting in front of the town government buildings but was arrested by the police, he was detained and released after 2 weeks, or that the was threatened and harmed by the police or anyone else not to protest again. It does not accept that the applicant petitioned or tried to petition but was prevented by the corrupt officials. It also does not accept that the applicant does not have a home any more or that his wife and children had to temporarily go to their grandparents’ place in relation to this claim.

29. The Tribunal does not accept that the applicant left China in fear for any of his claimed reasons nor that he is of any interest to the Chinese authorities for any reasons. As the Tribunal has rejected the applicant’s claims about what happened to him in relation to his land being forcibly taken and his home demolished by the government, it does not accept that he will be persecuted by the Chinese government and police in relation to these past claimed events, including being arrested, threatened or harmed, if he returns to China. The Tribunal also does not accept that the applicant does not have his land in China to farm and earn an income. There is insufficient evidence to indicate that the applicant cannot farm and subsist with his farming income on return to China.

1. For the reasons set out above and having considered the applicant’s evidence and claims individually and cumulatively, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on return to China for his claimed reasons or for any other reason in s 5J(1)(a), now or in the reasonably foreseeable future. Therefore, the Tribunal is not satisfied the applicant has a well-founded fear of persecution in China, and the applicant does not meet the definition of refugee in s 5H(1). The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligation under s 36(2)(a).

2. 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).

3. The Tribunal has found that the applicant will not be harmed for his claimed reasons or for any other reason upon return to China. For the same reasons set out above, the Tribunal is not satisfied that there is a real risk that the applicant will be harmed upon return to China. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

4. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

   DECISION

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

   Hee-Jung Kim
   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.

   …