2305760 (Refugee)
[2024] ARTA 932
•17 December 2024
2305760 (REFUGEE) [2024] ARTA 932 (17 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2305760
Tribunal:Danae Younger
Date:17 December 2024
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 17 December 2024 at 3:46pm
CATCHWORDS
REFUGEE – Protection Visa – China – imputed political opinion – anti-government opinion – was mistaken by Hong Kong authorities to be a participant in “Occupy Central ”– applicant had provided inconsistent information over time – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] on 31 March 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] Now known as the Minister for Immigration and Multicultural Affairs.
The applicant, who claims to be a national of the People’s Republic of China (China), made a protection visa application (PV application) on 2 March 2020.
The delegate refused to grant the protection visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations under the refugee criteria in s 36(2)(a) of the Act, or the complementary protection criteria in person s 36(2)(aa) of the Act and does not satisfy the other criteria in s 36(2) of the Act.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[2]
Mandatory considerations
[2] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
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),[3] 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
[3] Now known as the Department of Immigration and Multicultural Affairs
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations, which the Tribunal will address through consideration of the following questions:
a)Does the applicant satisfy the refugee criteria in s 36(2)(a) of the Act?
Or, alternatively,
b)Does the applicant satisfy the complementary protection criteria in s 36(2)(aa) of the Act?
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background and receiving country
As specified in a Movement Details document dated 5 November 2024, the applicant was granted an Australian student visa on 8 January 2019 and initially arrived in Australia on [date] January 2019, travelling on his Chinese passport which was issued in 2018.
The applicant left Australia on [date] September 2019, before arriving in Australia for the second time on [date] October 2019, again travelling on his Chinese passport.
On 2 March 2020, after having been in Australia for a further 4 months and 3 weeks since his last arrival, the applicant made his PV application.
The applicant’s student visa ceased on 14 April 2021, and the applicant has since held a bridging visa.
The applicant provided a copy of the biodata page of his Chinese passport as part of his PV application, which was issued in 2018. The delegate accepted that the applicant is a citizen of the People’s Republic of China, noting that there was no evidence before them that any of the documents provided was a bogus document as defined in s 5(1) of the Act.
There is no other evidence before the Tribunal refuting the applicant’s identity. Therefore, the Tribunal is satisfied that the applicant is a citizen of the People’s Republic of China, and that China is the “receiving country” as referred to in s 36 of the Act, for the purposes of assessing the applicant’s claims for protection.
Evidence before the Department
The Tribunal has before it documents from the Department file, which include – but are not limited to - the following documents taken into account by the Tribunal:
· The PV application lodged 2 March 2020, together with the biodata page of the applicant’s passport issued in 2018;
· The Department’s letter to the applicant requesting more information and associated checklist, pursuant to s 56 of the Act, dated 6 October 2022; and
· The delegate of the Department’s decision, titled Protection Visa Record, dated 31 March 2023.
PV application
The applicant was born in Jiling province, China, where he lived up until he came to Australia in 2019. The applicant is a [age]-year-old male, who speaks, reads and write Mandarin.
The applicant answered “no” to the following questions, relevant to the consideration of this decision:
a)Whether he had an authorised recipient appointed to receive written communications;
b)whether he was in contact with any family members outside of Australia;
c)whether he has ever studied;
d)whether he was previously or currently employed;
e)whether he had travelled to any countries in the last 30 years.
In relation to departure from home country, the applicant provided that he departed Zhengzou on [date] January 2019 and arrived in Sydney on the same date, using his Chinese passport. The type of arrival was said to be “student”. No further departure or arrival dates from China or Australia were provided in the PV application.
The applicant made the following claims for protection:
·In relation to the question of why he left China to come to Australia and whether he experienced harm in China – He stated that he went to Hong Kong to join the Occupy Central with Love and Peace event in 2011 and was punched by a local police officer;
·In relation to the question of whether the applicant tried to move to another part of the country to seek safety – He stated that he tried to relocate elsewhere in China, but the public security system has a record and tracks him down everywhere;
·In relation to the question of what he thinks would happen to him if he returned to China – he stated that he will be caught by the authorities and put in jail; and
·In relation to the question of whether the applicant thought the authorities would protect him – he denied this, and stated that the authority is the one who wanted to punish him.
Other records
Department records indicate that the applicant was not offered an interview.
On 6 October 2022 the Department sent a letter to the applicant, via the applicant’s registered email address. A change to the applicant’s registered email address was noted on the Department file on 12 November 2020, and the letter was sent to that updated email address. This letter was sent pursuant to s 56 of the Act and invited the applicant to respond with information and documents set out in an attached checklist (the s 56 invitation).
The applicant did not respond to that request.
On 31 March 2023 the delegate made their decision, as summarised above.
Further evidence before the Tribunal
Pre-hearing evidence
The Tribunal has the following further and relevant documents before it, which have been taken into account by the Tribunal:
a)The Application for review dated 25 April 2023;
b)The applicant’s pre-hearing information form sent to the Tribunal, signed by the applicant and dated 17 October 2024;
c)The Tribunal’s Notices of Hearing from the Tribunal dated 30 October 2024 and 26 November 2024, sent to the applicant on those dates;
d)two pre-hearing invitation response forms, signed by the applicant, dated 30 October 2024 and 26 November 2024 respectively.
In the Tribunal’s Pre-hearing information form dated 17 October 2024, the applicant provided the following further information about his claims for protection: “I am afraid that once I return to China, I will be caught by the local authorities.”
The review application form, the pre-hearing information form and the two Notices of Hearing referred to above all invited the applicant to submit any further evidence and documents in support of his case.
Each of the pre-hearing invitation response forms referred to above, specifically asked the question: “Do you intend to rely on any documents at the hearing, e.g. written witness statements, written submissions, country information, or other evidence?” to which the applicant checked the “no” response.
The applicant did not provide the Tribunal with any additional information or documents in support of his case at any stage during the Tribunal process, including up to the date of this decision.
Oral evidence at hearing – 19 November 2024 and 5 December 2024
The applicant appeared before the Tribunal on 19 November 2024 and 5 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented.
The applicant said he was educated in China to a junior high school level and has had some casual employment since then in both China and Australia. His parents and grandparents continue to reside in China, and he has regular contact with them by phone. He is unmarried and has no other immediate family either in China or elsewhere.
The applicant told the Tribunal that a “lawyer” had completed the PV application form for him. He used his mobile to translate the contents, using something like Google to translate, and read it in Mandarin. The applicant confirmed that he did raise the claims in the PV application and that the claims were true and correct. On further questioning from the Tribunal, the applicant said he was not really sure if it was a lawyer, but he was introduced to that person by a friend and he was unable to say what the lawyer’s name was. He confirmed he paid the lawyer some fees to submit his PV application and “nothing else”, but he could not remember how much because it was a long time ago.
The Tribunal discussed with the applicant the Department’s letter to him, pursuant to s 56 of the Act, dated 6 October 2022 which requested information and documents as specified in an attached checklist, and that no response was received from the applicant. The applicant responded that he was not informed by his lawyer about the Department request for information, and that he was not aware that he could provide such information until the time of the first hearing.
The Tribunal discussed with the applicant that the Department file does not record any, lawyer as acting for the applicant, and correspondence with the applicant was addressed to the applicant, and sent to email addresses stated in the PV application and later updated with the Department. In response, the applicant denied those two email addresses were his email addresses and he suggested that as his English is very limited, his lawyer could have provided them to the Department on his behalf. On further questioning, the applicant denied he had received the s 56 letter either directly or through his lawyer, but he confirmed he had received notification of the Department’s decision to refuse his PV application from his lawyer who asked him if he wanted to review the decision.
The Tribunal notes that the email addresses on the Department file are different to the applicant’s email address on the Tribunal file, which he has been responding to including by appearing at the hearing.
When asked why he had left China to come to Australia, the applicant said his family were thinking he did not have a good development path for his future, and at first he was here it was to see if he could study at school. When he arrived in January 2019, the Applicant studied a course in Melbourne for around 6 months, but he could not recall specific details and he did not complete that course. He departed Melbourne later that year for the purpose of travelling - he returned to China briefly, meeting up with a family friend, and they travelled to Hong Kong, and he then came to Australia the second time.
When asked about his travel in the last 30 years, the applicant said he had travelled to [a country] in 2014/2015 and Hong Kong in 2019 for about one week.
When asked about his intention and reasons for lodging the PV application, the applicant said that the first time he was coming as a student so did not intend to apply, and the second time “things happened” and he was experiencing financial hardship so he decided to apply, but he clarified that this was not the “main claim”. The applicant then told the Tribunal that he was travelling in Hong Kong, during which time there was a movement to try to take over the government agency, “Occupy Central”. He said he was “mistakenly recognised” as one of the participants by Hong Kong police and received harm in that experience. He said that the Hong Kong police checked his ID, so he was worried if he returned to China again they would arrest him, so instead he decided to return to Australia.
When asked for further details, the applicant provided the following information:
a)he met his friend in China and they travelled by plane from Beijing to Hong Kong;
b)he was in Hong Kong for a total of about one week around the end of June 2019;
c)the pair were touring around, enjoying the food and looking at historical buildings in Hong Kong. Whilst touring, he saw police using high pressure water guns and fights had started, and during this process his ID card was checked by a Hong Kong police officer, and he knew it was an officer because they were in uniform. The officer asked if the applicant was one of the participants, but the applicant did not have a chance to explain the “real situation” to the police, as people started running around, and the area became chaotic, so he “took the opportunity to flee”;
d)During the process running away from the scene, he “somehow got beaten”. He did not remember who beat him and whether they were a police officer. He thought he was hit with some sort of stick, but he could not be sure;
e)He suffered a mild injury to the back of his head. He did not seek medical help because it was not a severe injury and he just wanted to leave Hong Kong as soon as he could;
f)He ran back to the hotel where he was staying and later returned to Australia.
The Tribunal referred the applicant to the PV application, which stated he went to Hong Kong to “join” the event in 2011. The applicant responded to the effect that this was a mistake on the form, that his lawyer had filled it out, and he only went to Hong Kong once in 2019, and that it was a “coincidence” that he got caught up in Occupy Central, and he did not go there to join in that event.
In relation to the circumstances leaving Hong Kong, the applicant said he only stayed in Hong Kong for a few hours, and that he already had a return flight to Australia booked as he was coming back to study, but he changed his flight to an earlier one to depart out of Hong Kong to fly to Melbourne as he wanted to leave as soon as he could.
The applicant said he did not encounter any trouble when leaving Hong Kong but within 2 months after he came to Australia, his family told him that Chinese police visited them in China and asked if he (the applicant) had returned home.
When the applicant was asked why he feared returning to China and what harm / his family had experienced there, he stated it was because he has been told by his parents that the Chinese police have visited his family asking questions about him, and he is afraid if he returns, he will be arrested. He has been told by his parents that the Chinese police have visited them “more than once – a lot of times, dozens of times, at least more than 20 times” and he thought the last time was in August/September this year. When asked what occurred on these visits, he said the police just check if the applicant is home, he did not think his parents say much, and since he is not home, the police leave.
Upon questioning from the Tribunal, the applicant said he did not have any issues with the authorities either when he left China in January 2019 to come to Australia the first time, or when he left Hong Kong to come back to Australia the second time.
When questioned as to further political involvement, the applicant said he had “never” been involved in any activities of a political nature, including in Australia.
The Tribunal questioned the applicant about the part of the PV application which stated: “I have tried to relocate, but the public security system has the record and track me down everywhere in china.” The applicant gave evidence to the effect that this was another mistake and that he had not relocated, as he did not return to China, but his parents had thought about relocating but could not do so because of the government security.
When questioned as to why the applicant waited a number of months to lodge the PV application after arriving in Australia the second time, the applicant said he did not know about it at first and later he heard his friend talking about it.
The applicant was asked if there was anything else he wanted to say about his claims or anything further that he wanted to raise, and the applicant did not provide any further information or claims.
The Tribunal discussed the country information with respect to China’s entry and exit procedures with the applicant. The Tribunal specifically noted that as Hong Kong is under Chinese government control and the applicant was able to travel from Hong Kong to Australia without incident, it seems unlikely that the applicant was on an exit control list.[4] In response, the applicant said he believes he departed very soon after the incident, and before he was placed on any list. The Tribunal also discussed with the applicant how the government’s entry and exit control list would make it likely the government would be aware that the applicant had not come back into the country, and as a consequence might find it unlikely that Chinese authorities would ask the applicant’s family if he was at home because they would be aware he had not returned to China. The applicant had no comment in relation to that information.
[4] DFAT Country Information Report People’s Republic of China, 3 October 2019 at 5.40, ‘Exit and Entry Procedures’;
At the second hearing, the Tribunal discussed the Movement Details document and the flight path information with the applicant, and how this differed from what the applicant had told the Tribunal. Namely, at the first hearing, the applicant told the Tribunal he left Hong Kong and flew to Australia. However, the Movement Details document and flight path information showed the flight was from Beijing to Melbourne, and did not appear to fly through Hong Kong. It was raised with the applicant that this information might lead the Tribunal to find that there are credibility issues with the applicant’s account and might be part of the reason for affirming the decision under review, subject to any comments from the applicant. In response, the applicant said he flew from Hong Kong to Beijing and then to Melbourne. The applicant confirmed this was late September to early October 2019, and claimed he had told the Tribunal that information previously. However, the first hearing recording provides that the applicant told the Tribunal it was in June 2019.
The Tribunal discussed with the applicant, new claims or evidence the applicant raised with the Tribunal that were not raised before the Department, pursuant to section 367A of the Act, including:
a)Specific details about the incident that happened in Hong Kong including as to why the applicant was there, and the circumstances that led to the applicant’s ID being checked by local police, and the details of the applicant being beaten by an unknown person and subsequently fleeing Hong Kong; and
b)The claim that the applicant parents had been visited by Chinese police officers and as to the circumstances of that occurring.
The Tribunal informed the applicant that the law requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.[5] The applicant said he understood but he did not know what to say about it.
[5] Pursuant to s 367A of the Act.
At the second hearing, the Tribunal raised with the applicant the following concerns with respect to inconsistencies in the applicant’s evidence in the PV application and at the hearing:
a)In the protection visa application, in relation to the question of why the applicant left China to come to Australia, the applicant said he went to join the event Occupy Central with Love and Peace, and was punched by a local police officer in 2011. At the hearing, the applicant said this was a mistake of his lawyer, and that he went to Hong Kong in 2019, and that he did not go there to join the event, but rather to sightsee and coincidentally had his ID checked by police. He also gave evidence that he was not sure if it was a police officer or not who had beaten him.
b)In the PV application, the applicant said he had tried to relocate. However, at hearing the applicant said he did not return to China and he did not try to relocate, and his parents had thought about relocating but were unable to do so due to government security.
c)At the first hearing, the applicant told the Tribunal he had read his application using an online translation service, and his claims were true and correct. The applicant later gave evidence that his lawyer had made mistakes in his application, as detailed above.
The applicant responded to the Tribunal’s concerns about inconsistencies by maintaining that his lawyer had made the mistakes in the PV application, and said that maybe he did not read the application very carefully, and he only realised the contents were inconsistent when he came to the first hearing.
The Tribunal also discussed with the applicant, its concern about the new claim raised at the first hearing, that the applicant’s parents had been visited by Chinese police officers. The Tribunal stated that it might find that claim not to be credible because it appeared to the Tribunal that the applicant was exaggerating or adding to the number of occasions, and as to the recency of when the police last visited. The applicant responded that he had no comments about this, and maintained all the information he gave to the Tribunal was true.
The Tribunal also discussed with the applicant, concerns it had about the applicant’s response at the first hearing as to the reasons for applying for the protection visa application, when he had raised financial hardship. The applicant responded that what he actually said at the hearing was that this is a bundle of problems, and he applied for the protection visa because of different issues – financial issues and his family issues, not only one isolated issue. When asked to explain this further, he said it was not very convenient for his family to transfer living expenses and tuition fees, as his family had been supporting his study and living expenses previously. When asked as to whether he applied for the PV application due to these issues, he denied this and said he was worried he would be arrested by police if he goes back to China and that last time he had explained this.
The Tribunal specifically raised with the applicant at both hearings that if there is any further information that the applicant believes is important or helpful for his case, to provide it to the Tribunal as soon as possible and it would be taken into account in making the decision. No further information has been provided by the applicant.
Findings and assessment
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
In assessing whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of credibility in relation to the claims the applicant has made.
The Tribunal notes the guidance provided in the Department’s Protection Visa Guidelines[6] and the ‘UNHCR Handbook’[7], in assessing credibility in claims in protection matters, including the difficulties often faced by applicants in obtaining documents or other independent evidence, and circumstances where the benefit of the doubt should be given go applicants who are generally credible but unable to substantiate all their claims. However, the Tribunal is not required to uncritically accept every claim made by the applicant, or to have contrary evidence available before finding that a particular factual assertion by an applicant has not been made out.[8]
Imputed political opinion
[6] 17 April 2024 at [15.4.6].
[7] ‘UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES’, 1 FEBRUARY 2019, AT [196], [203]-[204].
[8] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (19980 86 FCR 547.
As noted by the High Court in Minister for Immigration & Ethnic Affairs v Guo & Anor,[9] the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for reasons of political opinion. It remains for the Minister in the first place to be "satisfied" and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
[9] (1997) 191 CLR 559 at 596.
In considering whether the applicant has a well-founded fear of persecution for reasons of political opinion, it is not necessary that the applicant actually holds the political opinion, and persecution for reasons of political opinion may occur if a person is imputed to hold a political opinion.[10]
[10] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22
The applicant’s claims stated at hearing are:
a)he was mistaken by Hong Kong authorities to be a participant in “Occupy Central”, a movement to take over the government agency, in Hong Kong in 2019, in that a Hong Kong police officer checked his ID during this event,
b)he was subsequently beaten by an unknown person;
c)He left Hong Kong and China to come back to Australia after this incident, fearing that if he returned to China he would be arrested;
d)His parents in China were visited by Chinese authorities after the Hong Kong incident, firstly about 2 months after the incident, and most recently in August/September 2024, to check as to the applicant’s whereabouts and then left.
The Tribunal is of the view the applicant’s evidence amounts to a claim that the applicant fears persecution by the Hong Kong/Chinese authorities on the basis of the applicant holding an imputed political opinion, namely an anti-government opinion. In other words, that it could be imputed or perceived by the authorities that the applicant held an anti-government political opinion given his ID was checked during the protest in Hong Kong. Although the applicant did not specifically express his claim in these words, the Tribunal finds that this is a reasonable assessment of his claim having regard to the applicant’s evidence as summarised above, and the particular circumstances of the applicant who was self-represented and his account was given in Mandarin translated to English.
By way of context, country information supports that Hong Kong has seen many protests and riots as part of its history including under the Chinese Special Administrative Region, including the 2014 ‘Occupy Central’ or ‘Umbrella Movement’ in support of democracy.[11] There were further large-scale protests in 2019 which originally were against a proposed bill that would have allowed Hong Kong to extradite fugitives to a number of countries, including mainland China[12] and protests continued throughout the rest of 2019 and until the beginning of 2020 with the arrival of COVID-19 and police banning gatherings of any size.[13] There has been widespread media attention as to allegations of police brutality and arrests, and related prosecutions.[14]
[11] ‘Hong Kong China Democracy Protests Reasons and History’, Time, 29 September 2014, 20190812
[12] ‘Hong Kong-China extradition plans explained’, BBC news, 10 June 2019.
[13] ‘The Hong Kong 2019 Protest Movement: A data analysis of arrests and prosecutions’ by Chang, Lai and Kellogg, Center for Asian Law – Georgetown Law, October 2023, pg 19.
[14] ‘Police received 1,200 complaints over handling of Hong Kong protests,’ South China Morning Post, 28 November 2019; ‘Hong Kong protests: more than 10,200 arrested in connection with unrest since 2019, government tells lawmakers', Ng Kang-chung, South China Morning Post, 9 April 2021. Note 10 at pg 23.
The Tribunal has significant concerns with respect to the credibility of the applicant’s evidence, taking into account various inconsistencies in the applicant’s evidence and inconsistencies with relevant country information as outlined below.
Inconsistencies with applicant’s evidence of past experiences of harm
In relation to questions as to why the applicant left China to come to Australia, whether he experienced harm in China, and why he filed the PV application, the applicant gave inconsistent versions in his PV application and at hearing:
a)In the PV application, the applicant said he went to Hong Kong to join the event, Occupy Central with Love and Peace, and then he was punched by a local police officer in 201;
b)At the hearing the applicant gave evidence – as summarised above - about first leaving China to come to Australia to study, and the second time after he went to Hong Kong to travel with a friend;
c)In relation to his reasons for applying for the PV application, the applicant did not intend to apply as he was coming to study, and the second time he referred to a reason of financial hardship – though not the main claim – and then gave the reason of his trip to Hong Kong during which he was coincidentally caught up in the event Occupy Central and had his ID checked by Hong Kong police, and he was then subsequently beaten by an unknown person, and he was worried if he returned to China again they would arrest him, so instead he decided to return to Australia;
d)At the second hearing, when asked about his response concerning financial issues, the applicant claimed he had applied for the PV visa because of different issues, both financial issues and family issues – referring to his family paying for his study and living expenses, however maintained that he was worried that he would be arrested by police if he goes back to China.
In relation to questions about what the applicant thought might happen to him, and if he thought he would be harmed/mistreated if he returned to China, the PV application stated only that the applicant thought authorities would “put [him] in jail”.
By contrast, at the hearing the applicant gave evidence that he has been told by his parents that the Chinese police have visited them asking if he was home, and he is afraid if he returns, he will be arrested. As to the timeframes of the visits occurring, the applicant’s evidence was that this happened within 2 months of him coming to Australia, and that they had visited “more than once – a lot of times, dozens of times, at least more than 20 times” and he thought the last time was in August/September 2024.
Although the account in the PV application was limited, there are significant differences in the applicant’s hearing account. These included as to the year (2019, not 2011); that he did not go to Hong Kong to “join” the Occupy Central event, but rather he was coincidentally caught up in it; his ID being checked by Hong Kong police (new at hearing); and as to the identity of the person who beat him (an unknown person, not Hong Kong police). The PV application also does not make mention of any financial or family issues, which were reasons which the applicant provided at the hearings. At the hearing, the applicant also provided further details about the circumstances of the Hong Kong incident and the harm which the applicant said happened to him including as to the visits by Chinese police to his parents in China, information which was not in the PV application. The applicant also gave different evidence at hearing that he had not returned to China and attempted to relocate, which was the opposite of what was stated in the application.
At the first hearing, the applicant’s explanation to the Tribunal as to why there were various “mistakes” within his application, including as to his claims set out above, was that a lawyer prepared the application for him. The Tribunal does not accept this as a satisfactory explanation of the inconsistent claims between his PV application and at hearing, given the following:
a)The applicant initially told the Tribunal that he had read the PV application and that his claims were true and correct;
b)It was only after the Tribunal pointed out inconsistencies between the PV application and his evidence at hearing, that the applicant said they were mistakes in the application;
c)At the second hearing, the applicant told the Tribunal that he only became aware of these inconsistencies at the time of the first hearing and that he did not read the application properly. The Tribunal does not accept those further explanations given they are inconsistent with his previous evidence.
The applicant referred to the movement in 2019 being “Occupy Central”, however the country information referred to above, does not support that movement as continuing in 2019. Rather, the country information supports that there was another protest movement in 2019 concerning anti-extradition. The name of the protest of and by itself may not affect the credibility of the applicant’s claim, noting the applicant’s evidence at hearing was that he did not go to Hong Kong to join the protest. However, it is of concern when viewed with the totality or cumulative effect of other concerns identified in these reasons.
As referred to above, the applicant gave inconsistent evidence in relation to the circumstances of how he left Hong Kong and came to Australia the second time.
At the first hearing the applicant said this occurred in June 2019 and that he changed his flights to travel from Hong Kong to Australia. It was not until the Tribunal referred to the Movement Details document and flight path information, which showed the dates of his travel and that the travel was from Beijing to Melbourne, that the applicant changed his account to say after leaving Hong Kong he flew to Beijing and then to Melbourne. The applicant said he had told the Tribunal at the first hearing that the trip to Hong Kong occurred in September/October 2019, however this was incorrect in accordance with the hearing recording. Whilst it is understandable that the date might be confused, the detail omitted as to the return to Beijing before coming to Australia is more significant in light of the applicant’s claim that he was worried about returning to China.
In relation to the new claim about his parents being visited by Chinese police, this is based on information that the applicant states his parents told him. There is no direct evidence from the applicant’s parents; they were not witnesses. The Tribunal considers the applicant has been given reasonable and fair opportunities to present further evidence but has not done so. The Tribunal does not accept this claim as credible because it was not raised before the Department, and it appears to the Tribunal that the applicant was exaggerating or overstating the number of attendances by police, i.e. “a lot of times, I can’t be sure how many times, maybe dozens of times, at least more than 20 times”.
The Tribunal has considered responses by the applicant when those concerns were put to him, including that he had no comment but the information was true, however the Tribunal does not accept that as a reasonable explanation, taking into account country information as to the Chinese government’s entry and exit control list, which was in effect at the time of the applicant’s departure on or about [date] October 2019 from Hong Kong/Beijing and has continued, noting the applicant’s evidence as to the number of times he says the Chinese police have visited his parents with the most recent occasion being mid-2024.
DFAT Country Information Report – People’s Republic of China, dated 3 October 2019 provides, under the heading ‘Exit and Entry Procedures’ at 5.40 provides:
Chinese law provides for foreign travel, emigration, and repatriation. A number of agencies within the Ministry of Public Security hold responsibility for monitoring entry and exit procedures at airports, including the Public Security Bureau, the Entry and Exit Authority, and the Frontiers Inspection Bureau. China’s major airports have a centralised system with name matching alert capabilities. Facial recognition technology is also widely deployed at all international checkpoints (air, land and sea). Security monitoring capabilities at airports are comprehensive, and departing passengers pass through several identity checks (including passport and ticket/boarding pass inspection) run by different agencies between arriving at the airport and boarding a flight. The government maintains an immigration exit control list.
DFAT Country Information Report - People’s Republic of China, dated 22 December 2021, under the heading ‘Exit and entry procedures’ at 5.31, provides:
Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
The Tribunal finds that in accordance with the country information as to the Chinese government’s entry and exit control list, the government would be aware whether or not the applicant had re-entered China, and it is therefore not credible that Chinese police would be asking the applicant’s parents on multiple occasions if he was at home. In making that finding, it is noted that the applicant had no comment in relation to that concern of the Tribunal.
Pursuant to s 367A of the Act, the Tribunal draws an inference unfavourable to the new claims made by the applicant at the hearing which were not raised before the primary decision-maker – as specified above - because the Tribunal is satisfied that the applicant does not have a reasonable explanation why those new claims were not raised before the primary decision-maker. In doing so, the Tribunal has taken into account that when this information was put to the applicant, the applicant said he understood but he did not know what to say about it. The Tribunal does not accept that as a reasonable explanation.
Delay and reasons for applying for protection
The applicant arrived for the second time in October 2019, which is the relevant occasion for the purposes of consideration of his protection claims. The applicant did not apply for his protection visa until March 2020, approximately five months after his arrival.
The Tribunal also has concerns about the genuineness of the applicant’s reasons for applying for protection visa, as he did not apply at the earliest possible opportunity after arriving on the second occasion. The Tribunal notes the applicant’s response as to the delay was because he did not know about the process and that a friend told him about it, however this does not alleviate the Tribunal’s concerns due to the other inconsistencies in his evidence, including as to the reasons he applied for the protection visa.
The applicant gave several reasons to the Tribunal as to why he had applied for a protection visa, including the claim that he feared the authorities would arrest him if he returned to China, but he also referred to financial and family difficulties. The applicant was on a student visa when he came to Australia, which was due to cease (and ceased in) April 2021. The applicant agreed he was coming back to Australia to study (the second time), but claimed that his main claim for protection was because of what occurred in Hong Kong, rather than for financial reasons. The Tribunal does not accept that explanation, because the applicant also provided evidence to the Tribunal that he did not finish his study course in Australia and that it was not convenient for his parents to pay his living and study expenses in Australia.
Lack of information provided to the Department / Tribunal
The Tribunal also has concerns about the credibility of the applicant’s claims, given the lack of information he has provided to the Department and the Tribunal to detail and support his claims, despite having had a number of opportunities to do so.
The applicant’s PV application was lodged on 2 March 2020, in which he provided vague details and little information about his background and claims. In the PV application, the applicant responded “no” to background information questions including whether he was in contact with any family members outside of Australia, whether he has ever studied, whether he was previously or currently employed, and whether he had travelled to any countries in the last 30 years. By contrast, the applicant provided evidence about each of these topics, inconsistent with the “no” response in the PV application.
As noted above, key aspects of the claims in the PV application were later – at hearing - rejected by the applicant as “mistakes” made by his lawyer.
The Department wrote to the applicant, via his registered email address, on 6 October 2022 requesting information and documents as specified in an attached checklist, and no response was received from the applicant. At hearing, the reason provided by the applicant for not providing a response, was that he was not informed by his lawyer about the letter, and that he was not aware that he could provide such information until the time of the first hearing. The applicant also denied the two email addresses registered with the Department as being for the applicant, were his email addresses and suggested his lawyer may have set them up. The Tribunal has concerns about the credibility of the applicant’s explanations, on the basis that the PV application and Department file have no record of an authorised representative for the applicant.
Even if the Department file is put to one side, the applicant has had opportunities to provide information and documents to the Tribunal about his claims, however he has not done so, including:
a)In the application for review on 25 April 2023, the applicant had the opportunity to provide additional documents including a written statement or submission;
b)The applicant was invited to provide any further evidence to the Tribunal, in the pre-hearing information form, signed by the applicant and dated 17 October 2024;
c)The applicant was invited to provide all documents he intended to rely on to support his case prior to his hearings, in the Notices of Hearing dated 30 October 2024 and 26 November 2024.
d)The applicant was specifically asked if he wanted to rely on any documents at the hearing in each of the two pre-hearing information forms signed by the applicant provided to the Tribunal, to which he responded “no”.
Overall finding on credibility of claims
Having considered all of the available evidence as discussed above, the Tribunal makes the following overall conclusions.
The Tribunal accepts that:
a)after coming to Australia the first time in January 2019 on a student visa, the applicant returned to China temporarily on [date] September 2019 for the purposes of going travelling with a friend;
b)the applicant travelled by plane to Hong Kong with his friend for one week;
c)the applicant left Hong Kong, flying first to Beijing and then returned to Australia on [date] October 2019, and that he continued to be on a student visa;
d)on each occasion, he travelled using his Chinese passport which was issued in 2018
as it is consistent with the Movement Details document, and there is no reason not to accept this information.
The Tribunal is prepared to accept that the applicant was travelling in Hong Kong at a time when an anti-government political movement was occurring, but not that it was the Occupy Central movement, given the country information referred to above.
The Tribunal also accepts the applicant’s evidence that he did not encounter any issues with the Chinese or Hong Kong authorities when he left Hong Kong/China to come to Australia [in] October 2019. In accordance with the Country Information Report – People’s Republic of China at the time of the applicant’s departure on that occasion,[15] the Tribunal finds that as the applicant was able to lawfully leave Hong Kong and China using his Chinese passport, he may not have been of adverse attention to the government authorities at that time.
[15] 3 October 2019 at 5.40, referred to above.
However, on the basis of the credibility issues with the applicant’s key claims as discussed above, the Tribunal does not accept that:
a)he was mistaken by Hong Kong authorities to be a participant in Occupy Central, in that a Hong Kong police officer checked his ID during this event;
b)he was subsequently beaten by an unknown person;
c)The basis of the applicant returning to Australia was because he feared that if he returned to China he would be arrested; and
d)His parents in China were visited by Chinese authorities after the Hong Kong incident, firstly about 2 months after the incident, and most recently in August/September 2024, to check as to the applicant’s whereabouts and then left.
Does the applicant satisfy the refugee criteria?
100. Having taken into account the findings and country information referred to above, and with due consideration of the applicant’s claims, both singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future, that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
101. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. In particular, as the Tribunal has not accepted the basis of the applicant’s claim as to imputed political opinion, s 5J(1)(a) of the Act is not met.
102. The Tribunal is not satisfied that the applicant meets the definition of refugee in s 5H(1).
103. The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under the refugee criteria in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criteria?
104. As the Tribunal has found that s 36(2)(a) of the Act does not apply to the applicant, the Tribunal has considered whether the alternative criteria of complementary protection in s 36(2)(aa) of the Act applies to the applicant.
105. For the same reasons set out above in relation to assessing whether there is a real chance of persecution involving serious harm if he is returned to China, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant will suffer significant harm, as defined in s 36(2A) of the Act.
106. Therefore, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under the complementary protection criteria in s 36(2)(aa) of the Act.
Additional findings
107. There is no evidence to support that the applicant satisfies ss 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or s 36(2)(aa) of the Act and who hold a protection visa.
108. Given the Tribunal’s findings that the applicant does not meet the refugee and complimentary protection criteria, the Tribunal has not assessed the criteria in s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than China.
DECISION
109. The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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