2017852 (Refugee)

[2024] AATA 3963

2017852 (Refugee) [2024] AATA 3963 (2 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2017852

COUNTRY OF REFERENCE:                   China

MEMBER:Member Nathan Goetz

DATE:2 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision dated 30 November 2020 refusing to grant the applicant a protection visa.

Statement made on 02 September 2024 at 2:30pm

CATCHWORDS

REFUGEE – protection visa – China – imputed political opinion – protest against a chemical factory – detention – physical assault – torture – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 425, 499
Migration Regulations 1994, Schedule 2; r 2.12

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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister who refused to grant the applicant a protection visa.

2. The applicant was not represented in the review.

   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.

8. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations.

   BACKGROUND

9. On 14 June 2018 the applicant was offshore and granted a student visa to study in Australia. [In] June 2018 the applicant arrived in Australia holding that visa. The student visa was valid until 14 April 2021.

10. On 27 August 2018 the applicant applied for the protection visa. According to the visa application form, the applicant is a male citizen of China who was born on [date] in Fuzhou city, Fujian province, China. He departed China [in] June 2018 legally and arrived in Australia [in Melbourne] as a student.

11. On 30 November 2020 the delegate refused to grant the protection visa because the delegate found that the applicant did not satisfy s 36(2)(a) or (aa) or (b) or (c) of the Act.

12. On 14 December 2020 the application for review of the decision was lodged with the Tribunal. In the review application form, the applicant identified that he presently resided at a residential address in Victoria.

13. On 18 July 2024 the Tribunal wrote to the applicant and invited him to appear at a Tribunal hearing scheduled for 10:30am on 9 August 2024 at the Melbourne registry. The hearing invitation made it clear that the Tribunal had considered the material it had but was unable to make a favourable decision to the applicant on this information alone. The purpose of the Tribunal hearing was to allow the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.

14. On 5 August 2024 the applicant wrote to the Tribunal and declared that he would not participate in the Tribunal hearing and consented to the Tribunal making a decision ‘on the papers’ without taking any furthers steps to allow or enable the applicant to appear at a Tribunal hearing. Accordingly, the Tribunal hearing was cancelled, and the Tribunal made a decision on the review: s 425(2)(b) of the Act.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the review is whether the applicant satisfies s 36(2)(a) or (aa) or (b) of (c) of the Act.

16. If the Tribunal finds the applicant satisfies s 36(2)(a) or (aa) or (b) or (c) of the Act, the correct or preferable decision is to set aside the decision of the delegate refusing to grant the visa and remit the visa application back to the delegate for reconsideration with a direction about the criterion the Tribunal has determined that the applicant satisfies.

17. If the Tribunal finds that the applicant does not satisfy s 36(2)(a) and (aa) and (b) and (c) of the Act, the correct or preferable decision is to affirm the decision of the delegate refusing to grant the visa.

18. The Tribunal considered all the material provided in support of the visa application and the review application. The evidence and consideration of that evidence is as follows:

    Identity, membership of the same family unit and country of reference

19. According to the visa application form, the applicant does not have citizenship of any country other than China and does not possess a right to enter and reside in any other country. In support of his identity, the applicant provided a copy of a Chinese passport issued in his name [in] 2016 valid until [2021]. The applicant declared that he departed China legally [in] June 2018 and that his last residential address in China was an address in Fuzhou city, Fujian province, China.

20. The applicant was the only person included in the visa application form. No members of his family unit were included in the visa application. He declared he was not married and identified his family consisting of a mother and father in China.

    Mandatory considerations

21. 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.

    Reason for departing China

22. In the protection visa application form, the applicant wrote that he left China because ‘my father led the residents to protest against the chemical factory. This caused my family to suffer the persecution from officials.’

23. The applicant was asked whether he had experienced harm in China. He indicated he did. He wrote ‘my father was arrest. I was threatened.’

24. In response to the question about whether he sought help within China after experiencing the harm, the applicant indicated yes, but wrote that ‘the officials did not help my family.’

25. The applicant was asked whether he moved, or tried to move to another part of China to seek safety and he indicated he did not. The applicant wrote ‘because of the household control system in China, my family had no place to go.’

26. The applicant directed the reader to ‘further information provided in my claim’ which consisted of a one-page typed statement. In that statement, the applicant claimed that the [named] Chemical Factory was launched in [specified year] and produced a large amount of wastewater and toxic emissions which resulted in ‘the surrounding residents were suffering.’ It was claimed that there were a variety of health problems faced by local residents, and that many people died.

27. The applicant wrote that on [a day in] 2017 his father ‘led more than 100 residents’ to ‘the Fuzhou Government to protest.’ It was claimed that the applicant’s father previously submitted a report to the Government on behalf of the residents, requesting that the chemical plant be shut down, but ‘there was no result.’ The applicant claimed that his father ‘made banners and led the angry residents’ and ‘required to meet the Government’s leadership.’ It was claimed that there was a ‘clash with the police and my father was illegally arrested in [a named] Prison’ where he was ‘tortured’ with the police ‘instructing the inmates to beat my father repeatedly.’ It was claimed that the applicant’s father was beaten by two inmates in the prison, and that ‘he got injured but he did not plead guilty.’ The applicant further wrote that ‘unwilling to fail, the inmates came up with the insidious tricks of torture, namely sitting on a stool.’ The applicant detailed what happened to his father on the stool.

28. The applicant claimed that after his father was caught, police repeatedly came to my house to search and threatened to catch my family members.’ The applicant claimed that the owner of the chemical plant was a relative of ‘the city leader.’ He wrote that ‘My offended the officials and my whole family paid the price.’ He claimed that ‘my mother saw my father’s miserable condition during a visit’ and that she was ‘too scared’ to sleep. The family sent the applicant to Australia to take refuge. It was claimed that the applicant’s father was still in prison and that the family is under surveillance, with ‘the car from the police station often stopping in front of my home.’

    What the applicant claims will happen to him if he returns to China

29. The applicant claimed that ‘he will be taken to prison.’ He claimed that he would be harmed or mistreated if he returned to China and wrote that ‘my father is in dangerous because the officials used the intimates to torture him. I will get the same treatment. He claimed that he did not think the authorities in China could or would protect him if he returned to China because ‘corruption is everywhere in China’ and ‘the government does not help the common people.’ He did not think he could relocate within China because he is ‘wanted by the police.’

    Request by the delegate for more information – s 56 of the Act

30. On 23 September 2020 the delegate wrote to the applicant and requested more information to help the delegate assess the protection visa application. The applicant was given 28 days to provide the information the delegate requested.

31. The delegate detailed that the in order for the delegate to decide whether the delegate should accept that the events took place as claimed, the applicant was invited to provide further information about the claims, noting that the applicant’s claims lack substantiating details such as documentary evidence to support the claims. The delegate asked the applicant to provide:

    ·     Documentary evidence of the protest [in] 2017 and any independent country information which refers to the applicant’s father’s involvement in organising the protest and his subsequent arrest.

    ·     Documentary evidence of the applicant’s father’s charges and arrest.

    ·     Documentary evidence of the location of the [named] Chemical Factory and its proximity to the address you have provided the Department as part of your visa applications.

    ·     Further information about why the applicant would be specifically targeted on return to China.

32. The delegate advised the applicant that if he as unable to provide the information requested, he would need to provide a detailed explanation about why the applicant cannot provide the information requested, and to detail the efforts the applicant made to obtain the further information and documents.

33. The applicant was given 28 days to provide the information requested, or to provide the explanation about why he could not provide the information and documents requested. The applicant did not respond to the delegate’s letter.

    Applicant on notice that the Tribunal was unable to make a favourable decision based only on the information provided

34. As detailed previously, when the Tribunal wrote to the applicant inviting him to appear at the Tribunal hearing, the Tribunal put the applicant on notice that it was unable to make a favourable decision to him based only on the information it had. The Tribunal hearing was an opportunity for the applicant to provide further information about his claims, and address any concerns that the Tribunal may have about the veracity of the protection claims.

35. Despite the applicant being warned that that the Tribunal could not make a favourable decision and being invited to appear at a Tribunal hearing to give him an opportunity to discuss his protection claims, the applicant indicated that he would not participate in a Tribunal hearing and consented to the Tribunal making a decision ‘on the papers.’ The applicant did not indicate in his response to the Tribunal hearing invitation that he would be providing the Tribunal with any further information or documents.

    FINDINGS AND REASONS

    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

36. The Tribunal accepts that the applicant is [name], a male citizen of China who was born and resided in Fuzhou city prior to travelling to Australia. The Tribunal is satisfied about the applicant’s identity on the basis of the applicant’s Chinese passport that he obtained legally. There is no evidence that the passport is a bogus document.

37. The Tribunal also accepts that the applicant does not hold any other citizenship or right to enter and reside in another country. The Tribunal comes to this conclusion because there is no evidence to suggest otherwise.

38. Therefore, the country of reference for the purpose of the protection visa assessment is China.

39. The applicant did not claim to meet the requirements for the grant of the protection visa on the basis that he was a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act. There is no evidence to suggest otherwise.

40. Therefore, the Tribunal finds that the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.

41. Concerning the applicant’s narrative about why he departed China and why he is unwilling to return to China, the Tribunal cannot be satisfied that the applicant’s father wrote to government authorities in China requesting that the chemical plant be shut down, or that he led a protest of residents in opposition to the chemical plant, or that he was arrested and harmed as claimed, that his father is in prison and remains in prison, that the applicant or his family are under surveillance by authorities because of the applicant’s father’s activities.

42. The Tribunal comes to those conclusions for the following reasons.

43. First, the applicant provided no documentary evidence to corroborate his claims, nor provided an explanation about why he was unable to provide documentary evidence to corroborate his claims. The Tribunal struggles to accept that there would be no documentary evidence of a written petition or evidence of the applicant’s father’s detention if those events occurred. In combination with the other concerns the Tribunal has, it leads the Tribunal to conclude that the absence of documentary evidence is attributable to the fact that the applicant’s father did not petition, lead a protest, or get detained by the authorities.

44. Second, the applicant’s evidence is that he remained in China until [June] 2018, which is six months after his father lead a protest on [a day in] 2017. The applicant did not claim to have participated in that protest, nor claim to be arrested or detained during the subsequent six months while he was in China, despite him not moving or trying to move while in China. The Tribunal struggles to accept that the applicant ‘will be taken to the prison’ if he returned to China when, on his evidence, he was not arrested or detained during the period subsequent to the protest. In combination with the other concerns the Tribunal has, it leads the Tribunal to conclude that the applicant was not sought by the authorities in China because the applicant’s father did not petition, nor lead a protest, nor be detained by the authorities in China.

45. Third, the applicant provided no explanation about how he was able to depart China legally on his own passport without incident when, if his claims were to be believed, his family was ‘under surveillance.’ The applicant also provided vague evidence that ‘police repeatedly came to my house and threatened to catch my family members’ but did not particularise when these police attendances occurred, nor explain how these attendances did not result in his mother and the applicant being detained. In combination with the other concerns the Tribunal has, it leads the Tribunal to conclude that the vague nature of the evidence about the police attendances and the applicant and his mother not being detained despite the police attendances on the family home is due to the fact that no police attendances or surveillance occurred.

46. It is not the task of the Tribunal to make the applicant’s case for him. The applicant has been on notice for a considerable period of time that his claims were vague and lacking in corroborate evidence, and that a real issue was the whether the protection claims were genuine.

47. Just because a person claims to have experienced past harm and will face harm in the future does not establish that either the past harm occurred, or if it did, that the harm occurred for the reasons claimed. Nor does the assertion that a person faces a risk of harm in the future establish that the risk of harm is real. It is the task of the applicant to provide a decision-maker with as much detail as possible to enable the decision-maker to make the relevant findings of facts.

48. In this review, the Tribunal’s assessment is that the evidence is vague and not accompanied by the level of detail expected of a person recounting their own lived experiences. In those circumstances, the Tribunal gives no weight to the claims.

1. The Tribunal is not satisfied that the applicant’s father, mother or applicant himself have been harmed in the past in China because the applicant’s father was involved in opposition to a chemical factory, or for any other reason. The Tribunal is not satisfied that the applicant’s father, mother or the applicant is of adverse interest to the authorities in China, or any individual or group. The Tribunal is not satisfied that the applicant departed China for the reasons claimed.

2. As the Tribunal does not accept the applicant’s narrative about what he claims occurred in China, it follows that the Tribunal does not accept that there is a real chance of serious harm or a real risk of significant harm to the applicant in China based on that claimed narrative.

   CONCLUSION

   Refugee

3. For the reasons given above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

   Complementary protection

4. For the reasons given above, the Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

   Member of the same family unit

5. For the reasons given above, the Tribunal finds that the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.

   DECISION

6. The Tribunal affirms the decision dated 30 November 2020 refusing to grant the applicant a protection visa.

   Nathan Goetz

   
   

   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.

   …