2202886 (Refugee)

[2022] AATA 4195

2202886 (Refugee) [2022] AATA 4195 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2202886

COUNTRY OF REFERENCE:                   China

MEMBER:Nathan Goetz

DATE:29 September 2022

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2022 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – China – Federal Circuit Court remittal – non-attendance at hearing – father one of elected candidates for village head – father’s fight against bribery – assault by police – father’s imprisonment – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 425(1), 426A(1A)(a), 499, 66(2)(d)(ii)
Migration Regulations 1994, Schedule 2

CASES
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189
Reeves, Perram and Charlesworth JJ

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 under s 65 of the Migration Act 1958 (Cth) (‘the Act’) by a delegate of the Minister to refuse to grant the applicant a protection visa.

   BACKGROUND

2. The applicant identifies as [age]-year-old male citizen of China presently located in Australia.

3. [In] April 2017 the applicant arrived in Australia holding a visitor visa. [In] July 2017 that visa ceased.

4. On 26 June 2017 the applicant applied for the protection visa. On 2 November 2017 the applicant failed to attend an interview with the delegate. On 2 November 2017 the delegate refused to grant the applicant the visa.

5. On 22 April 2018 the applicant applied to the Tribunal to review the decision to refuse to grant him the protection visa. On 14 May 2018 the Tribunal finalised the review in AAT case 1811395 on the basis that it had no jurisdiction to review the decision because the review application was lodged outside the prescribed timeframe for review.

6. On 15 June 2020 the applicant applied to the Tribunal again to review the decision to refuse to grant him the protection visa. On 4 September 2020 the Tribunal finalised the review in AAT case 2009937 on the basis that it had no jurisdiction to review the decision because the review application was lodged outside the prescribed timeframe for review.

7. [In] March 2021 the applicant lodged judicial review in the Federal Circuit Court against the Tribunal decisions of 14 May 2018 and 4 September 2020.

8. [In] February 2022 the Federal Circuit Court, with the consent on the Minister, quashed the Tribunal decision of 14 May 2018 and remitted the review back to the Tribunal for redetermination in accordance with law.

9. That same day, the Federal Circuit Court dismissed the judicial review of the Tribunal decision of 4 September 2020.

10. The Federal Circuit Court remitted the review on the following basis:

11. “The Minister concedes that the decision of the Tribunal is affected by jurisdictional error of the type identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (DFQ17) at [41]–[65] per Perram J and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (BMY18) at [32]–[35] per Reeves, Perram and Charlesworth JJ.

12. In circumstances where the letter notifying the applicant of the decision of the Minister’s delegate to refuse to grant the applicant a visa did not clearly state the time by which the application to the Tribunal was to be made as required by s 66(2)(d)(ii) of the Migration Act 1958 (Cth), the Tribunal erred in concluding that the applicant was notified of the delegate's refusal decision in accordance with the statutory requirements (at [3]), that the review application was out of time, and that it had no jurisdiction to entertain the review application (at [5]-[6]).”

13. On 7 September 2022 the Tribunal invited the applicant under s 425(1) of the Act to appear at a three-hour Tribunal hearing scheduled for 9:30am on 29 September 2022 so he could give evidence and present arguments relating to the issues arising in relation to the decision under review. The Tribunal was required to invite the applicant to appear at a Tribunal hearing because the Tribunal decided it should not decide the review in the applicant’s favour based on the material it had.

14. On 29 September 2022 the applicant failed to appear at the Tribunal hearing. The Tribunal is satisfied that the applicant was invited to appear at the Tribunal hearing in accordance with the statutory requirements.

15. Tribunal records demonstrate that SMS reminders were sent on 21 and 28 September 2022 to remind the applicant about the Tribunal hearing to the mobile telephone number that the applicant provided to the Tribunal as his contact phone number  

16. The Tribunal observes that the applicant did not attend the delegate interview, did not respond to Tribunal correspondence dated 24 August 2022 where he was directed to complete an online pre-hearing information form within 7 days, and did not complete and return a ‘Response to hearing invitation’ that was attached to the hearing invitation.

17. Given all the circumstances, the Tribunal determined the appropriate course was to make a decision on the review without taking any further action to allow or enable the applicant to appear at a Tribunal hearing: s 426A(1A)(a). The Tribunal waited until the end of the allocated hearing time before making a decision.

    Criteria for a protection visa

18. 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.

19. 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.

20. 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).

21. 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.

22. 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.

23. 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.

    Mandatory considerations

24. 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.

25. The most recent DFAT report on China is dated 22 December 2021.

    CONSIDERATION

26. The Tribunal considered all the material it had concerning the applicant’s protection claims. The relevant evidence is summarised below.

    Identity, family and country of reference

27. In his protection visa application form, which the applicant declared was completed without assistance, he identified the following:

    ·     He was born in Laixi city, Shandong province, China and is a citizen of that country with no right to enter and reside in a third country. He departed China from Xiamen airport [in] April 2017 and arrived in Sydney [in] April 2017. He left China legally.

    ·     He travelled to Australia on this passport and declared that he previously held a Chinese passport that was lost. Attached to the form was a copy of the applicant’s Chinese passport that was issued [in] 2015 and valid for 10 years.

    ·     His passport was issued by the MPS Exit and Entry Administration.

    ·     He lived at one residential address in China, namely [named] village, [named] town, Laixi city, Shandong, China.

    ·     From July 2006 until April 2017 the applicant worked [for] [a] company in Laixi city.

    ·     He identifies no ethnic group nor religious denomination.

    ·     He is married, and was married in Laixi city, but did not provide the date of his marriage.

    ·     He provided the details of his wife, and two sons who reside in China, as well as his mother and father who also reside in China.

    ·     From [date] December 2015 until [date] December 2015 the applicant was in [Country 1].

    Protection claims

28. In the protection visa application form, the applicant identified that he was making his own claims for protection. He did not claim to be seeking protection based on membership of a family unit. He seeks protection in Australia, so he does not have to return to China.

29. The applicant wrote that he left China because his father was ‘one of the elected candidates for the village head’ and his father had ‘fought against bribery.’ This angered the former village head, and the family was subjected to violence. The applicant claimed that his head was seriously injured by police which required treatment in a hospital.

30. According to the statement attached to the protection visa application form, at the end of 2016 the village head was re-elected. The applicant wrote that the former village head ‘occupied village production’ and many villagers were against him. The applicant’s father was respected by people and there was a possibility of his election. The former village head’s family told the villagers that they would be paid 1000RMB to trade their votes. The applicant’s father reported this bribery to the superior government.

31. [In] January 2017 police attended the applicant’s home and wounded him. The applicant’s father was put in jail. The police alleged the applicant’s father would be jailed for falsely accusing others. The applicant wrote that he knew the village head used his relationship to hurt the applicant’s family. The applicant wrote that his father was cruelly beaten and tortured physically and mentally. The applicant detailed his father’s treatment. The applicant wrote that his family let him escape China because the village head could put him in prison. His father has been put in prison.

32. [In] May 2017, police beat the applicant’s father in front of prisoners. The applicant detailed what occurred. The applicant also wrote that when his family visited his father, his father asked about his situation many times. The applicant’s father asked the applicant to live in Australia.

    FINDINGS AND REASONS

33. The issue in this case is whether the applicant is a ‘refugee,’ or a person who meets the requirements of ‘complimentary protection,’ or a member of the same family unit as a person who is a ‘refugee’ or meets the requirements of ‘complementary protection.’

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

    What is the country of reference?

35. The Tribunal is satisfied that the country of reference for the purpose of the protection visa is China because the applicant has produced his Chinese passport. The Tribunal is satisfied that this is evidence of his Chinese citizenship. The Tribunal is satisfied that the applicant has no right to enter and reside in a third country because there is no evidence to undermine the applicant’s claim that he does not possess this right.

    Can the Tribunal attach any weight to the applicant’s claims?

36. The Tribunal invited the applicant to appear at a Tribunal hearing because it decided that it should not make a decision favourable to the applicant based on the material it had. The Tribunal hearing was an opportunity for the applicant to provide evidence to address the concerns that the Tribunal had. Because the applicant did not appear at the Tribunal, it is therefore not surprising that the Tribunal finds itself in the position of not being able to make a decision favourable to the applicant.

37. The Tribunal is not satisfied that it cannot attach any weight to the applicant’s claims without having the opportunity of testing the veracity of those claims. The only evidence the applicant provided in support of his claims were his answers and written statement contained in the protection visa application form from 5 years ago.

38. Some of the evidence the applicant provided is not sufficiently detailed to satisfy the Tribunal there is any weight to those claims, while other evidence (that is detailed) concerning the applicant’s father’s treatment in prison and prison condition is not accompanied by an explanation of how the applicant came to obtain this knowledge.

39. For example, the applicant claimed that his father was ‘one of the elected candidates’ for the village head. The applicant provided no details of the election process, other candidates, or any campaign activity undertaken on behalf of his father. The Tribunal was unsure about whether the applicant was involved in his father’s alleged campaign.

40. Further, the applicant claimed that he was sent to the ‘[named] Hospital in Laixi City’ for treatment to a ‘long cut’ as his ‘head was seriously injured by police.’ The applicant wrote that it was [in] January 2017 that police came to his home and wounded him. The applicant provided no detail about how many police attended the family home, how long the beating took, when the beating commenced and the circumstances of how it unfolded, nor when the applicant attended hospital, how long he was treated for, or how the applicant ‘knew it was the village head’ who ‘used his relationship to hurt his family.’

41. The Tribunal also observes that if the applicant was wounded as claimed, it would be reasonable to expect that he would be able to obtain corroborative medical reports of his injuries. There is no evidence of an explanation about why corroborative evidence about the claimed injuries and treatment was not provided by the applicant.

42. Further, the applicant wrote about the prison conditions his father faced in jail, as well as claimed injuries his father suffered in prison. The Tribunal does not understand how the applicant knew this, nor the source of this knowledge.

43. Additionally, the applicant wrote that when his family visited his father in jail, his father asked the applicant to live in Australia. The Tribunal understands this to demonstrate that the applicant was already in Australia when this request was made by his father. The applicant provided no detail of when this request was made and has therefore been unable to provide a context of this request regarding the timing of his protection visa application.

44. The applicant has also been unable to explain why he was harmed in China when the evidence is that the applicant’s mother remained in China and has not been harmed. The applicant has also been unable to explain why he was would be permitted to depart China if he was adverse interest to the Chinese authorities.

45. Just because the applicant claimed that there is a real chance of serious harm in China does not establish that the harm is serious, that the chance is real, or that the harm would be directed at him due to his race, religion, nationality, membership of a particular social group, or political opinion. Nor does the fact that applicant claimed that there is a real risk of significant harm to him in China establish that the risk is real, or that the harm is significant. The Tribunal does not have to blindly accept the claimed factual basis upon which the claims were made. It is the task of the applicant to provide the Tribunal with the necessary detail in order to satisfy the Tribunal that he meets the statutory criteria for the grant of the protection visa.

46. Without the applicant appearing at a Tribunal hearing so that the truth of his claims can be tested, the Tribunal cannot be satisfied that there is any truth to the applicant’s claims. The Tribunal cannot be satisfied that the applicant’s father participated in any political activity, nor was harmed in any way in connection with those activities, nor imprisoned as claimed. The Tribunal cannot be satisfied that the applicant was harmed in China in connection with his father’s claimed political profile and cannot be satisfied that the applicant departed China because of his claimed experiences of harm or fear of future harm, or that he failed to return to China because of these claimed experiences of fear of harm.

47. The Tribunal is not satisfied that the applicant or his family in China are of any adverse interest to any person, group, or authority in China. The Tribunal is not satisfied that there is any truth to the applicant’s claims and reject them in their entirety.

    CONCLUSION

    Refugee

48. For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to the applicant in China due to his race, religion, nationality, membership of a particular social group, or political opinion.

49. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection

50. For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to China, there is a real risk the applicant will suffer significant harm.

51. Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    Member of the same family unit

1. For the reasons given above, the applicant is not a member of the same family unit as a person who satisfies s 36(2)(a) or (aa).

2. Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c).

   decision

3. The Tribunal affirms the decision not 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.

   …