2311316 (Refugee) - [2024] ARTA 146

2311316 (Refugee) [2024] ARTA 146 (5 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2311316
Tribunal:General Member E Rutherford
Date:5 December 2024

Place:Adelaide
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that
(i)that the second named applicant meets s 36(2)(a) of the Migration Act; and
(ii)that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second named applicant.

General Member E. Rutherford

Statement made on 5 December 2024 at 2:13 PM
CATCHWORDS
REFUGEE – protection visa – China – grandparents and young grandchild – original claims of COVID pandemic and restrictions – vulnerability of elderly and children – form completed by daughter/aunt – later claims of capacity to subsist and grandchild’s religion – grandparents’ age, health and treatment and limited relationship with and no support from other children, including grandchild’s father – grandchild’s personal and real interest in Christianity – language, education and church activities – country information – access to and quality of medical treatment not serious harm – ban on education about and practice of religion by children – possibility of bullying and psychological harm – members of family unit – child financially dependent on aunt, but psychologically dependent on grandparents – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1),5AAA, 5J(1)(a), (3)(c)(i), 5H(1), 36(2)(a), (aa), (b)(i), (2A), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(2), 1.12(4)(d), Schedule 2, cl 866.221(3)
CASES
1812711 (Refugee) [2024] AATA 2314
Any 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 on 6 July 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of China, applied for the visas on 1 March 2020. The delegate refused to grant the visas on the basis that claims raised by the primary applicant did not raise any ground specified in s 5J(1)(a) of the Act, and there was no other reason to suggest they would be subject to harm in China for one or more of the grounds specified. In addition, the delegate found that the applicants would not suffer significant harm as required by s 36(2A) of the Act.
The applicants appeared before the Tribunal on 26 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the daughter of the primary and third applicants ([Dr A]) and her husband ([Mr B]). The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
In these reasons, I have referred to [the first applicant] as the primary applicant or the grandfather, [the second applicant] as the second applicant or the grandchild, and [the third applicant] as the third applicant or the grandmother.
The primary applicant claims to be [an Age] year old male. The third applicant, being the wife of the primary applicant, claims to be [an Age] year old female. The second applicant is their grandchild, [an Age] year old male.
The applicants live in a regional town with [Dr A] and [Mr B].
Evidence before the Department
Protection visa application
Claims were advanced by the primary applicant only in the protection visa application, with the second and third applicants relying solely on their membership of the primary applicant’s family unit. However, it was clear from the text of the application that the claims advanced extended to both the second and third applicant.
The claims stated by or on behalf of the primary applicant were that there was a ‘high risk of contracting the virus COVID19 during this worldwide epidemic season/year.’ The harm feared by the primary applicant was ‘bodily harm, such as being taken away by the authorities’. The primary applicant stated that the authorities of China were unable to protect each member of the population from the risk of Covid.
Supporting documents
With the application, the applicants uploaded their passports, as well as the national identity cards of the primary and third applicants, their family books, a letter of support from [Mr B], the grandchild’s birth certificate, a form 1447 ‘No Further Stay waiver request’, and a statement about the primary applicant’s employment history.
The letter of support from [Mr B] attested to his own efforts to regularise the status of his wife’s family members in light of their soon expiring visitor visas, and the developing health crisis. He wrote:
I hereby formally request an extension of their visas by three months or even a bridging Visa until this unfortunate crippling virus is brought under control and travel restrictions are lifted inside the People’s Republic of China, therefore allowing my wife’s family members the right to be able to return to their home and village without any restrictions or delay increasing the chances of contracting this deadly virus.
The form 1447 is signed and dated 11 February 2020, and is to be used to request a waiver on a condition on visitor visas which prevents the holder from applying for most types of visas while in Australia. It includes a box with heading ‘Give details of why your circumstances are compassionate and compelling’. In this box, the following has been written on behalf of the primary and third applicants:
Small children and the elderly are particularly vulnerable contracting infectious respiratory diseases.
Hopefully we only need a couple months further stay and will travel back to China once the travel ban is lifted.
In a letter dated 5 March 2020, [Dr A] and [Mr B] wrote to the Department indicating their support for their family members to remain in Australia. The letter refers to them needing to stay in Australia ‘for more than 6 months, possibly until the end of the year or even longer before it is safe for them to travel internationally and reunite with the rest of the family in China’.
On 5 March 2021, [Dr A] and [Mr B] again wrote to the Department with a further update about the applicants. The letter states:
During the time of their stay and [Town 1], my [Age]-year-old nephew … has started full time education at … Primary School… Unfortunately, after suffering from a day of vomiting and vertigo, my father was diagnosed with cerebellar stroke… Considering the nature of the disease, it may take a long time of rehabilitation to help him get to the level of fitness as before the stroke attack.
Finally, updated passports for the primary and third applicants were provided to the Department, issued by the Consulate General of the People’s Republic of China in Adelaide in [2023].
The Department did not interview the applicants regarding their application.
Summary of the delegate’s decision
The delegate accepted the claimed identities of each of the applicants, and did not consider them to have provided any bogus documents as defined in s 5(1) of the Act. The delegate proceeded without making any assessment of the credibility of the primary applicant’s claims, and decided the application based solely on the issue of whether a fear of harm from the Coronavirus could meet the criteria set out in s 36(2)(a) or s 36(2)(aa) of the Act.
The delegate determined that it could not, firstly because the fear of contracting Coronavirus did not relate to any of the reasons specified in s 5J(1)(a) of the Act, and therefore the applicant could not be found to be a refugee as defined in s 5H(1) of the Act. In the alternative, the delegate considered the complementary protection criteria, and found that the claims did not raise any fear that the applicants would suffer significant harm as defined in s 36(2A) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
On 18 November 2024, the following documents were sent to the Tribunal on behalf of the applicants:
Documents relating to all applicants
·2 x enduring powers of attorney
·Letter from [Dr A] and [Mr B] dated 5 March 2021
·Statement of residential evidence and support of humanitarian visa application dated 5 March 2020
·Letter to Minister dated 7 February 2020
·Protection visa decision record and notification letter
·Letters from Home Affairs to attend biometrics
·Letters acknowledging withdrawal of Bridging E visa applications
·Grant notices for Bridging A visas
·Notification of valid applications for protection visas
·Letter dated 14 February 2020 in response to letter to Minister
·Fact sheet about Novel coronavirus – information for visa holders and applicants (English and Mandarin)
·Print out from website report ‘Inquiry into the DFAT’s crisis management arrangements’ – C: Timeline of key events
·Print out from website Smart Traveller – latest update on China (updated 3 September 2024)
·Flight centre receipt dated 6 November 2019 for applicants’ travel to Australia December 2019
·Flight centre receipt for applicants’ travel to China 20 April 2020 (declined)
·Flight change notices of Air China dated 12 March 2020
·Flight change notices of Air China dated 21 May 2020
·Email from travel agent dated 26 March 2020
Documents relating to the primary applicant
·Rejection letter from Centrelink for special benefit dated 17 September 2020
·Rejection letter for carer payment for [Dr A] dated 9 November 2022
·Letter dated 15 February 2023 re My Aged Care – assigned level 3 home care package on 10 January 2023
·Letter dated 10 January 2023 pre-approval of financial hardship assistance for Home Care
·My Aged Care support plan generated 25 March 2021
·My Aged Care Support Plan generated 21 March 2022
·Letter from MyAgedCare dated 21 March 2022 confirming eligibility for Home Care package level 3
·Application for MyAgedCare dated 16 March 2022
·MyAgedCare support plan review 2 March 2022
·MyAgedCare support plan review 2 November 2021
·MyAgedCare support plan review 23 July 2021
·Patient Health Summary
·Notes dated 30 November 2022 re Home care package assessment
·[Radiology] MRI Brain scan results 1 March 2021
Documents relating to the second applicant
·Letter from parents granting custodial care to [Dr A] and [Mr B]
·Rejection letter from Centrelink for special benefit dated 17 September 2020
·Certificate of first holy communion dated 15 September 2024
·Certificate of Sacrament of Confirmation on 18 June 2024
·Certificate of Baptism on 8 March 2024
·Certificate of participation in [Town 2] Primary School [Region] Cross Country event, 10 May 2024
·Semester 1 Report year 3 2024
·[School] Award for Hospitality dated 28 February 2023
·[School] Award for Compassion dated 7 December 2023
·[School] Award for Mutual Respec, dated 18 March 2022
·[School] Award for Integrity dated 6 December 2022
·Statement for [OSHC] June 2021 – October 2024
·December 2023 letter re enrolment in 2024
·December 2022 letter re enrolment in 2023
·December 2021 letter re enrolment in 2022
·“About Me”
·Photos from [Kindergarten] 2020
·Invoice for Kindergarten fees term 4 2020
·Invoice for Kindergarten fees term 3 2020
·Invoice for Kindy fees half term 2020
·Letter from [Catholic Primary School] dated 18 November 2024
·Letter from [City] Catholic Parish dated 17 November 2024
·Letter from the second applicant’s godmother dated 15 November 2024
Documents relating to the third applicant
·Letter dated 13 January 2022 recommending third dose of covid vaccine
·Support letter dated 18 November 2024.
The hearing
The applicants along with [Dr A] and [Mr B] as witnesses attended in person on 26 November 2024 to give evidence to the Tribunal.
The Tribunal was given additional evidence in support of the applicant, being:
·An updated support letter from [Dr A]
·Photographs of the applicants shortly after their arrival in Australia
·Support letter from a home support worker
·Photographs of [Dr A] and [Mr B] with the primary and second applicants in China from 2009
·A copy of [Dr A] and [Mr B]’s marriage certificate with English translation
·Verifications of [Dr A]’s medical qualifications
·Photographs of the primary and third applicants in China from 2010
·Photographs to show the condition of the house owned by the primary applicant
·Passports of the applicants
In anticipation of the communication needs of the primary and third applicants, the Tribunal had arranged for an in-person Mandarin interpreter and another interpreter to appear remotely to speak a particular dialect spoken by the third applicant. Unfortunately, it became apparent that the third applicant was unable to communicate to either interpreter, and the online interpreter was released. This resulted in the third applicant being unable to present any evidence to the Tribunal. [Dr A] informed the Tribunal that the dialect spoken by her mother was from a very remote place within Shandong Province and it was unlikely that a suitable interpreter would be able to be found. [Dr A] offered to interpret for her mother. There was insufficient time to do so, so at the conclusion of the hearing, it was agreed that the Tribunal would write to the applicants with a list of questions which [Dr A] could ask her mother, and transcribe her answers in English. However, the Tribunal considers that the issues for determination can be adequately determined on the material already before it and has been able to reach a favourable decision without the need for further information from the third applicant, and so no further questions were put to her.
Evidence was taken first from the primary applicant. The primary applicant explained that he had been born in a small village of approximately 500 households. He grew up with his parents, grandparents and [sisters], and his parents had been farmers. One of the primary applicant’s sisters has passed away, and the other lives in another province. The primary applicant gave evidence that he and his wife had three children, with the eldest being [Dr A]. His next eldest daughter was described as having a disability. The primary applicant described her as ‘mentally challenged’ with poor vision and said that she is reliant on her husband and son to take care of her. They live in a neighbouring village approximately 7 km away from the primary applicant’s home village. The primary applicant’s son (the father of the grandchild) lives in their home village with his wife, his wife’s child from a previous marriage, and another child of their own. According to his evidence, his son was between jobs, and had only been able to do odd jobs since completing technical school in [subject].
The primary applicant gave evidence consistent with the protection visa application regarding his education and employment background as an accountant.
When asked about the protection visa application, the primary applicant said that his daughter had filled it out and that he did not know what was contained within it. I explained to him that it was about the pandemic, and harm feared from the risk of catching COVID-19. The applicant said that the problem he now faced was that his health condition had deteriorated and he had lost his mobility while in Australia. He said that his property in China had collapsed, so there was nowhere for him to go, and he did not think he could survive. Due to needing to travel in a wheelchair, the primary applicant was concerned that he could not go anywhere and that he would not have any access to treatment, such as hydrotherapy. The primary applicant said that he thought he would still be able to access his medication.
I asked the primary applicant about his other children’s properties. His daughter, he said, lives in a small place, and they could not live with her because she has her own needs, so there is no way she could take care of them. His son lives in a house that the primary applicant himself had built, which was large enough only for the four members of their family. The primary applicant also raised a concern that the grandchild did not know his parents and didn’t really speak with them.
On behalf of his wife and grandchild, the primary applicant said that his wife had rheumatoid arthritis, and no one would be able to take care of her in China. His grandchild would have issues with his education because he had been learning English.
I asked the primary applicant about his relationship with the grandchild. The primary applicant said they were very close, because he had been taking care of him since he was a few months old. Upon their arrival in Australia the primary applicant said he continued to care for his grandson, but that since his health had deteriorated, his daughter now did more of those kinds of things. He said that the grandchild was financially reliant on [Mr B]. He said that decisions about his grandson are usually made in consultation with the family, but he did not know anything about the school being attended by his grandchild because he was no longer able to go to pick him up like he used to.
[Dr A] then gave evidence to the Tribunal. She corroborated the details provided about her siblings, with the additional information that her sister had been born with very low intelligence and was unable to see. She had never been to school and was unable to look after herself. She received a disability pension which was roughly equivalent to about $20 per month. She described her accommodation as being very similar to that of the pictures submitted of her father’s house, which she said was typical of houses in that area.
With respect to her brother (the father of the grandchild), [Dr A] said that she had not seen him for many years even before she came to Australia. She said that her brother and sister-in-law had no jobs with three children, and that her parents had supported them all, even after they themselves stopped working. [Dr A] said she suspects that there is violence and alcoholism in the family, as her sister-in-law has complained to her a number of times. She said that her nephew had been very happy to leave them. After arriving in Australia, he didn’t talk to his parents for a very long time but would occasionally speak to his younger brother if she was making a video call to his mother. [Dr A] described being the one always to reach out to her sister-in-law, and that she and her brother never make the effort to call her. They have never sent money or showed interest in supporting their son. [Dr A] explained that she did not blame them for this because their own life was very hard. She said that her brother did not work and that her sister-in-law had only been able to find a job in a shop about one year ago. It was only just enough money for their family, and [Dr A] at time has sent money for food. [Dr A] described her brother as ‘difficult’ and said that his relationship with their father was not a good one. [Dr A] did not know at what age exactly her nephew went to live with her parents.

[Dr A] said that the reasons why her family needed protection had changed a lot since they lodged the visa application. She said that so much had changed over five years, and that her father was no longer a healthy man. He had no means to earn a living, and their house had not been maintained. [Dr A] gave evidence about the medications and treatment being received by both of her parents. [Dr A] said that she would probably have to go back to China with them because no one else would take care of them, but she fears doing so because of her own work with the [Employer]. She said that in their village, people do not get treatment because it is not available. She said that people in wheelchairs just have to stay in their homes because nothing is accessible. Even before they came to Australia, she said her parents did not take medicine needed by them because it was too expensive.
We discussed whether the treatment would be better in a city, rather than their village. [Dr A] gave evidence from her time as a doctor in the capital city of their home province. She said that limited services did exist within hospitals, but that cost was inhibitive for most people. She said that the government subsidised some of the cost of medical treatment but there was still significant out of pocket expenses. For example, people had to buy their own wheelchairs.
With respect to her nephew, [Dr A] expressed concern that his language barrier would cause problems for him, as well as his religion. [Dr A] described the grandchild as Catholic. She said that her husband had made the decision to send the grandchild to a Catholic school because he is Catholic also, but she is not a religious person. In the beginning she said that the grandchild didn’t have any religious discussions with her, but that the school had started a program that was a ‘success’ in his case, and that he had started to show a real interest in it. She said at his age, it’s not possible to force a child to do something they don’t want to do, but he and a group of his friends are very involved in it. According to [Dr A], the religious program involves one or two meetings per month after school. At home, she said that the grandchild has religious discussions with her husband, which [Dr A] occasionally joins in on. She said he prays before he goes to sleep, and that sometimes she or her husband will take him to church.
[Dr A] said that there is no freedom of religion in China, and that going to church was definitely not something that happened in the area her parents are from. She said that this was the one issue about the grandchild that she had not discussed with his parents, because she did not know how they would respond. While [Dr A] believes that it should be his choice and that she supports him in this, she did not think this would be the case if he were to return to China.
I asked [Dr A] about the grandchild’s relationship with his grandparents. She said that he was dependent on them for psychological support. Initially, [Mr B] had paid for the grandchild’s schooling but that she had now paid him back for that, and paid for it now herself. She said she also paid for all of his other expenses. She said that she and [Mr B] had to be strict with the grandchild, but that his grandparents were his ‘comfort zone’.
I also asked [Dr A] about her experience renewing the applicants’ passports. [Dr A] said that she had been very nervous to do so because of her own background working for the [Employer] which she felt might expose her to harm, and that she would not have been willing to attend an embassy in person, but that the process had all taken place online and so had been easy to attend to.
Finally, evidence was taken from [Mr B]. [Mr V] expressed his concern that his wife’s family would not have any support in China. He said that the primary applicant’s son had stolen all his pension money and they can’t find him.
He described the thought of his parents-in-law going back as a ‘death sentence’ because they don’t have the capacity to sustain themselves with nowhere to live and no one to care for them. [Mr B] said he was worried that his wife would go back to China with her parents if they were deported, and that she might be snatched and ‘pumped for information’ because of her role in the [Employer]. He said that this would cause a breakup of his family.
He said that the grandchild had been raised by his grandparents, and now has very limited ability to speak Chinese. He said that, based on his own experience as a Catholic person in China, he was worried that at his young age, the grandchild might say something about his religion, and that if a teacher there is part of the Communist party and hears it, he would be taken away and re-educated. He also said that he had worked as [an occupation] in China, and seen firsthand Australian-born children being picked on at school because of their language.
I asked [Mr B] why he had wished to move the grandchild from a public school to the Catholic one he currently attends. [Mr B] said he had done this because some children at the first school learned that the grandchild was Chinese and picked on him. This was related, he said, to things they had heard about the pandemic. [Mr B] thought that the education the grandchild would receive at the Catholic school was better. [Mr B] said that he tried to teach the grandchild about all religions, but that since attending the school, the grandchild had shown a real interest in the Catholic faith. [Mr B] allowed him to attend the Catholic program that was being run, which involved the children learning all the steps towards confirmation and baptism. He said that the grandchild independently did his own research about the patron saints and chose St Michael because this saint was also an archangel. [Mr B] described the grandchild as inquisitive, and that he independently asks [Mr B] questions such as what happens when a person dies and what happens to their souls. He said that the grandchild reads the bible and gets [Mr B] to help him with his prayers. According to [Mr B], the grandchild wears a cross every day, and was wearing a medal of St Michael until it fell off recently. Finally, he uses his rosary to calm himself down.
After hearing from the primary applicant and the two witnesses, I discussed some issues with all three individuals present.
First, I expressed the impression that the claim related to the Coronavirus was no longer at the forefront of the applicants’ fears, and that other issues relating to the grandparents’ health and the grandchild’s religion, were expressed as more pressing concerns. [Mr B] expressed a desire to make written submissions to me about this point. With respect to the health concerns, I expressed a concern that it might be that the harm feared did not relate to any convention grounds, or might arise from problems with the health system that applied to all individuals in China equally.
Second, I informed the applicant that there might be issues that arose when I considered whether the family were all members of the same family unit. Given the limited time available I indicated that if I were considering making a decision which had different outcomes for different members of the family, that I would put this matter to them in writing for comment, and that I encouraged them to obtain legal advice in that instance.
Third, I queried whether it would be appropriate to take evidence from the grandchild’s parents. [Dr A] said that she did not think it was necessary. [Mr B] said that it would be difficult to do so.
Post-hearing submissions
I indicated to the witnesses that they could submit further information to me and that I would set a timeframe to do so. However, I have been able to reach a conclusion favourable to the applicants without the need for any further information, and so I have decided not to await any documents or submissions from the applicants or witnesses.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for 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 is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
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.
REASONS AND FINDINGS
The issue in this case is whether any or all of the applicants have a well-founded fear of persecution in China, or in the alternative, they face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to China. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference China
The applicants have provided passports and identity cards in support of their claimed identities. I am satisfied that all are nationals of China.
There is no evidence to suggest that the applicants have citizenship of any other country, or that they have a right to enter and/or reside in any other country. Based on the information before me, I am satisfied that s 36(3) of the Act does not apply to the applicants. I am satisfied that China is the applicants’ receiving country, and I have assessed their claims against that country.
Background
I accept that the primary and third applicants are married, and that they are the grandparents of the second applicant. I accept that all three originate from a village in Shandong Province and that they would return to this village if removed to China. I find that the primary applicant’s testimony regarding the family composition as detailed above is accurate.
I accept on the basis of the medical evidence provided that the primary applicant has had a cerebellar stroke and that his mobility has been adversely affected. I accept that he requires blood thinners and medication for high blood pressure and that he is currently engaged in physical therapy. While I have not been provided written evidence of the third applicant’s conditions, I accept that she has arthritis.
I accept the evidence of [Dr A] regarding the challenges posed by her brother and sister’s situation in China. On the basis of those challenges I accept that neither of them would be in a position to care for the primary and third applicants. I also find that, given the grandchild was already living outside their household prior to coming to Australia, his parents are unlikely to resume custody of him in the future. I accept therefore that [Dr A] would feel obliged to return to China in order to care for her parents and nephew in the event they were unable to remain in Australia, and that she would in fact do so.
Claims for protection
The claims put forward by the applicants in their application for a protection visa relate solely to the harm they might have suffered if required to travel back to China during the COVID-19 pandemic.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the 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 in specifying any particulars of the claim, or to establish or assist in establishing the claim.[1]
[1] Migration Act 1958 (Cth), s 5AAA.
Being mindful of this however, other claims arose on the materials put forward on behalf of the applicants which I consider raise other claims for protection that must be considered.
I do not consider that I am required by s 367A of the Act to draw unfavourable credibility assessments from the fact that these claims and evidence have only been raised now before the Tribunal. I consider this is reasonably explained by the passage of time and the events that have taken place since the delegate made its decision.
Health concerns of the grandparents
The United States Department of State (USDOS) reported in 2024 in its report on human rights practices on China regarding persons with disabilities:
The law protected the rights of persons with disabilities and prohibited discrimination, but persons with disabilities were not able to access education, health services, public buildings, and transportation on an equal basis with others.
According to the law, persons with disabilities “are entitled to enjoyment of equal rights as other citizens in political, economic, cultural, and social fields, in family life, and in other aspects.” Discrimination against, insult of, and infringement upon persons with disabilities was prohibited.[2]
[2] United States Department of State (USDOS), China 2023 Human Rights Report, 22 April 2024, 82-83.
Article 49 of the Chinese Constitution requires grown children to ‘support and assist their parents’.[3]
[3] Constitution of the People’s Republic of China, Art 49.
According to the Department of Foreign Affairs and Trade:
Social security is limited in China. Traditionally, people rely on family to support them in old age or sickness. Under China’s new Civil Code, which came into force on 1 January 2021, parents have the right to demand support from their adult children if it is not otherwise forthcoming. A subsistence allowance, dibao, is paid to the poor with the rate set by the local municipality. If a person is returned to China without means of family support, DFAT assesses that it would be difficult, but not impossible, to subsist depending on individual circumstances including age, health, ability to work and level of education. Access to social security and basic services can also be impacted by an individual’s registered place of residence.[4]
[4] ‘DFAT Country of Information Report: People’s Republic of China’, Department of Foreign Affairs and Trade (DFAT), 22 December 2021, [2.8].
I consider these laws indicate that no active discrimination is taken by the authorities in order to deny people with disabilities, or the elderly, essential services and medicines.
The World Health Organization reports that:
In China, the pharmaceutical spending accounted for more than 30% of the total health expenditure in 2018. Drug sector reforms are embedded with the overall health system reforms. In 2019, China amended the Drug Administration Law as part of the country's efforts to strengthen supervision to ensure drug safety. Drug prices have been reduced through price negotiation and volume-price procurement. Health Technology Assessment (HTA) evidence is reviewed by a formal government process to inform decisions about listing drugs in the benefit package.[5]
[5] ‘Essential Medicines’ World Health Organization (Webpage) Essential Medicines.
I consider that the medication required by the primary and third applicants for their conditions would be available to them, even if costly.
Catholicism of the grandchild
As expressed by Deputy President S Roushan in his capacity as Senior Member of the then Administrative Appeals Tribunal, case number 1812711 (Refugee) [2024] AATA 2314, there are limited means available to assess whether a child has a personal faith, or is merely following the instruction of others.[6] I do not consider it appropriate to question the grandchild about his beliefs. Instead, I consider that [Dr A] and [Mr B], being members of the grandchild’s family, have been able to provide sufficient evidence for me to make positive findings about the child’s faith.
[6] 1812711 (Refugee) [2024] AATA 2314, [37].
I found the evidence of [Dr A] and [Mr B] regarding the religious beliefs of the grandchild to have been given honestly and without embellishment. [Mr B] was able to give spontaneous examples that demonstrate that the grandchild is interested in the Catholic faith of his own volition, and not as a result of pressure from any external party. While the local priest is likely to have fostered the initial interest, it appears to me that the child has now extended his faith beyond merely what he is being taught at school because he has done independent research and questions his uncle on matters of religion at home.
I find that the grandchild is unlikely to be returned to the home of his parents in the reasonably foreseeable future. Instead, he is more likely to reside according to the arrangements made by his aunt for him and his grandparents. I find that, if he ever were to reside with his parents again, they are unlikely to encourage in his faith, and in fact may actively discourage him. Given the evidence of [Dr A] about her brother I have concerns that this might also expose him to harm, but in light of the other findings I have made, I do not consider it necessary to make findings about that.

[Dr A] is concerned however that the grandchild should not make his faith known widely in case it exposes him to harm. I consider it likely therefore that she would feel obliged to instruct him to keep his faith secret, particularly from teachers and his peers at school, to protect him. [Mr B] believes that, with his inquisitive mind, the grandchild would naturally speak of his beliefs to others, and this would expose him to harm.
Country information before me, and which was also outlined in case number 1812711, informs me that regulations in China explicitly ban the practice of and education about religion for minors.[7] There are also laws forbidding parents or guardians from allowing ‘minors to participate in religious cults or superstitious activities’.[8]
[7] ‘Regulations on Religious Affairs (2017 Revision)’, State Council of the People’s Republic of China, State Council of the People’s Republic of China [English.gov.cn], 1 February 2019.
[8] ‘Law of the People’s Republic of China on Protection of Minors – 2020 Revision’, National People’s Congress (China), 17 October 2020, Art 17.
Two relevant reports emerging from the United States Department of State refer to prohibitions of religious education and practice for children. In its 2018 report on International Religious Freedom for China the following appears:
The revised religious regulations implemented in February and policies enacted by the state-sanctioned religious associations inhibit children under the age of 18 from participating in religious activities and religious education. For example, one provision states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools other than religious schools. At the county level, religious affairs bureaus in localities including Henan, Shandong, Anhui, and Xinjiang have released letters telling parents not to take their children under 18 to religious activities or education.[9]
[9] ‘International Religious Freedom Report 2018 – China (Including Hong Kong and Macau)’, United States Department of State, 21 June 2019, p 9.
Similarly, in the 2022 report it was written that:
Regulations allow only the five state-sanctioned religious associations or their affiliates to form and register religious schools. Children younger than 18 are prohibited from participating in religious activities and receiving religious education, even in schools run by religious organizations. One regulation states that no individual may use religion to hinder the national education system and that no religious activities may be held in schools. The law mandates the teaching of atheism in schools, and a CCP directive provides guidance to universities on how to prevent foreign proselytizing of university students.[10] [emphasis added]
[10] ‘2022 Report on International Religious Freedom: China (Includes Hong Kong, Macau, Tibet, and Xinjiang)’, United States Department of State, 15 May 2023, p 14.
According to the Christian advocacy organisation, Open Doors, Christian children are ‘pressured into attending anti-Christian or majority religion teaching’:
Children of all categories of Christian throughout the country are forced to study anti-biblical and anti-religious teachings as the atheist education system discourages religious belief (this is a campaign which was re-started in 2018). Children of Christians have been put under pressure to reveal their parents' religion, which indicates the levels of pressure teachers' superiors and the CCP are exercising, but not necessarily about the teachers' own attitudes.[11]
[11] Open Doors, ‘China: Full Country Dossier’, December 2023, p 81.
Additionally,
If children remain strong in their Christian faith, despite being constantly taught otherwise, teachers (and peers) often discourage them from attending Christian activities in order to avoid pressure from superiors. Religious books are seen as "reactionary readings" and students are strongly discouraged from reading them. By law, all children are required to attend state school education according to the 9-year free education scheme. This policy has been very strictly implemented by the authorities. Reportedly, a survey form investigates the religious affiliation of college students and graduates in China and prohibits them from expressing any religious convictions at all (China Aid, 27 May 2022). Young people in some areas have been threatened with not being allowed to graduate or not being accepted for further studies. This pressure is even stronger on children of known converts.[12]
[12] Ibid, p 82.
According to a representative of ChinaAid:
For the first time since the Cultural Revolution of Chairman Mao in 1960s, Chinese children are forced to renounce their faith in public by the Chinese Communist Party. Otherwise, the teachers will lose their job, the principals will not get a promotion, and certainly this will impact the so-called duty of the public security officers in charge of these educational schools.[13]
[13] ‘China’s War on Children’s Faith’ Christian Freedom International, (Webpage, 15 October 2020), China's War on Children’s Faith - Christian Freedom International.
A personal account of one individual affected by these laws describes harassment and psychological abuse, and being ordered to refrain from sharing their faith at school.[14]
[14] Lydia Blaha, ‘CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools’ (Blog, 6 October 2020) CHINA – Chinese Christian children face bullying, discrimination from Communist gov’t, schools – Christian Persecution News.
Do the applicants meet the refugee criterion for protection?
I find that the applicants do not have a well-founded fear of persecution if returned to China in the reasonably foreseeable future resulting from the Coronavirus. I have been given no evidence to suggest that any of them have a subjective fear of contracting the coronavirus any longer, and I find that the claim put forward on their behalf was relevant only at the time the application was made.
First and third applicants’ health conditions and disability
I accept that the primary applicant faces mobility challenges as a result of suffering a stroke, and that he requires medication. I have found that the medication required by him and the third applicant would be available to them in China. I consider that the physical therapy he is undergoing improves his quality of life but that the inability to access it would not constitute serious harm.
I accept that the health system in China is not the same as in Australia, and that the applicants have access to services here that they might not be able to receive in China, or that might be costly or even unaffordable for them.
However, I do not consider that this is harm directed at them for any of the reasons set out in s 5J(1)(a) of the Act. In particular, I consider that China has laws which protect the rights of people with disabilities and the elderly, and I do not consider that the unavailability of services is an act of intentional discrimination on either of these particular social groups.
At the conclusion of the hearing, [Mr B] expressed concern that his father-in-law might not survive a flight due to the risk of deep vein thrombosis. I do not consider that the risk of deep vein thrombosis from flying constitutes a well-founded fear of persecution, nor is it harm that is directed at him individually as a consequence of his removal from Australia.
For these reasons, I am not satisfied that the primary or third applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Second applicant’s religion
I have found that the grandchild is likely to continue to live with his grandparents and aunt in the reasonably foreseeable future. [Dr A], although she does not have religious beliefs herself, is likely to support the grandchild to continue to pursue his own faith.
It is unavoidable that the grandchild would be required to be sent to school for compulsory education.[15]
[15] Xiaoming Sheng, ‘Home Education and Law in China’ (2018) Education and Urban Society 50(6), 575-592, 586.
I have been unable to locate country information which indicates that a child is at risk of being taken away for ‘re-education’, but rather I find that the laws surrounding public education would be implemented in such a way that the grandchild would be actively discouraged from having a faith, as well as actively encouraged to renounce his faith.
I consider it likely that he would be faced with the predicament of being targeted for abuse, discrimination or being bullied for his religious views, or of being required to keep those views hidden. Given his young age, I do not consider it likely that he would be able to do so successfully.
My assessment of whether this harm amounts to persecution is made in light of his young age and vulnerability. While the harm from bullying might not amount to serious harm for an adult, I consider this harm would affect a child of his age differently. The Department’s Refugee Law Guidelines refer to the UNHCR Guidelines on Child Asylum Claims, which in turn refers to the impact that psychological harm may have on a child.[16]
[16] Department of Home Affairs ‘The Refugee Law Guidelines’, reissued 27 November 2022, [3.11.7.20] and [3.11.9].
I find that the harm feared on behalf of the grandchild is sufficiently serious so as to amount to persecution. That persecution relates to all areas of the country. I find that the basis for the persecution feared is his religion. The grandchild could not take reasonable steps to modify his behaviour so as to avoid the persecution both because of his age, and because it would be prohibited under s 5J(3)(c)(i) to expect him to. As the persecution stems from the laws implemented by the government of China, I find that no state protection against the harm would be available to him.
For the reasons given above, I am satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Do the applicants satisfy the complementary protection criterion for protection?
Having concluded that the primary and third applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
I find that the harm feared by the first and third applicants relates to the difference in healthcare systems between Australia and China. I have not accepted that they will be unable to access the medications required by them for their health conditions. I do not accept that the reduction to the mobility of the primary applicant constitutes significant harm as exhaustively defined in s 36(2A).
I am not satisfied that there is a real risk of them being exposed to harm from the coronavirus, or to the primary applicant from deep vein thrombosis.
I am therefore not satisfied that the primary or third applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the second applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a).
Member of the same family unit
Section 36(2)(b) of the Act and clause 866.221(3) of schedule 2 to the Regulations allow for the grant of a protection visa to a person who is a member of the same family unit as another person who has satisfied s 36(2)(a) on the basis of being owed protection obligations. A person is the member of the same family unit 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.[17]
[17] Migration Act 1958 (Cth), s 5.
Member of the family unit is defined by reg 1.12 of the Regulations for the purpose of a protection visa in the following terms:
(4) A person is a member of the family unit of another person (the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of:
(i) the family head; or
(ii) a spouse or de facto partner of the family head; or
(d) a relative, of the family head or of a spouse or de facto partner of the family head, who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
The word ‘relative’ is defined within reg 1.03 to include a grandchild. ‘Dependent’ is defined by reg 1.05A(2) for the purpose of a protection visa to mean that the person ‘is wholly or substantially reliant on the other person for financial, psychological or physical support’.
I have evidence before me of the grandchild’s dependency on each of the adults in his household. I consider that he is dependent on his aunt predominantly for his financial needs. However, the fact that he was raised by his grandparents from birth is strongly suggestive of him remaining dependent on them psychologically despite no longer being dependent on them financially or physically. The grandfather and [Dr A] both gave evidence that the bond between the grandchild and his grandparents remains extremely close, and I am satisfied that this amounts to a continued dependency on them for psychological support. They continue to reside in the same household. I therefore find that the grandchild is a member of the primary applicant’s family unit by operation of reg 1.12(4)(d).

100. The Tribunal is not satisfied that the primary and third applicants are persons in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that they are the grandparents of the second applicant and are members of the same family unit as the second applicant for the purposes of s 36(2)(b)(i). As such, the fate of their application depends on the outcome of the second applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
101. The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that
·(i) the second applicant meets s 36(2)(a) of the Migration Act; and
·(ii) that the other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the second applicant.

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.
…