2401187 (Refugee)

Case

[2025] ARTA 1826

29 August 2025


2401187 (REFUGEE) [2025] ARTA 1826 (29 AUGUST 2025)

DECISION AND  

REASONS FOR DECISION

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:  2401187

Tribunal:Clyde Cosentino

Date:29 August 2025

Place:Brisbane

Decision:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 29 August 2025 at 1:04pm

CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – led protests against demolition of local housing for development – applicant and father injured and applicant arrested, detained, questioned and monitored – aunt’s unexplained death – unhindered departure, delay in applying for protection and undetailed written claims – mental health and treatment – medical reports – fear of arrest and persecution – substantial and consistent oral claims and evidence – country information – departure watch list at national level – facial recognition and tracking of people with mental health issues and known activists – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5H(1)(a), 5J(1), (3)(c)(iii), (4), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2

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

  1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

  2. The applicant who claims to be a national of China, applied for the visa on 29 August 2021. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.

  3. On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

  4. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

    CRITIERIA FOR A PROTECTION VISA

  5. 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.

  6. 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.

  7. 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).

  8. 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.

  9. 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

  10. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  11. The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
    s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

    Nationality

  12. The applicant provided a copy of her People Republic of China (China) passport to the Department.  The Department accepted that the applicant was a national of China. The Tribunal accepts on the information before it that the applicant is a national of China.

    Evidence before the Department

  13. In her protection visa application, the applicant provides the following information:

    ·She was born in [County 1], Shanxi, China.  She claims to be a Chinese citizen.

    ·She is presently [Age] years old.

    ·She has a Chinese passport. 

    ·She has a Chinese national identity card.

    ·She claims never to have married.

    ·Her two “biological parents” were born in [County 1], Shanxi, China.

    ·She remains in contact with her parents.  She calls them by WeChat everyday and sometimes by mobile.

    ·She claims that her previous addresses in China were:

    oFrom [September] 2018 until [August] 2019 - [Community], [County 1], Changzhi City.

    oFrom [Birth] to 9 June 2009 - [Community 1], [County], Changzhi City.

    ·She can speak, read and write Mandarin and English.

    ·She last arrived in Australia (at the time of application) [Day 2] August 2019, after departing from China on [Day 1] August 2019. She arrived in Australia on a visitor visa.

    ·She has temporarily entered the following countries (not Australia) as follows:

    o[June] 2019 - [Country 1] (Transit)

    o[June 2019] – [Country 2] (7 days)

    o[June] 2019 – [Country 2] (Transit)

    o[October] 2019 to [November] 2019 – [Country 3] (4 days)

    ·She completed her high school education in [Year] in Changzhi City, China.

    ·She completed an Associate Degree in [Subjects 1 and 2] at the [Institution 1], Queensland in February 2012 after starting the course in June 2009.

    ·She completed a Bachelor of [Subject 2] at [University] in August 2014 after starting the course in February 2012.

    ·She commenced a Master of [Related subject] in March 2020 at [Institution 2].

    ·When asked why she left her country she claims:

    My family lived in the [Community], [which] was forcibly demolished, and my family suffered a substantial economic loss. I face persecution because I resisted demolition with my family. We were retaliated against by government officials.

    ·She claims she experienced harm in her country. She claims:

    In early March 2019, the government of [County 1] issued a demolition notice to residents of [Community]. Most residents disagreed [with] the plan, as it was illegal without the approval of the National People's Congress. On the morning of [Day 1] April 2019, 40 or 50 young men in black came to the community. They claim to be conducting demolition investigations on behalf of the county government. My father and I refused to let them into the house because they couldn't provide valid documents. A man who claimed to be the leader punched my father and insulted me. The residents had to call the police, who came to the scene slow and late.

    After theses bandits left, I went to the Public Security Bureau of [County 1]. I reported to the police that my father was beaten and I was insulted. The police said they were going to investigate. I went home and wait[ed] for the news. At 8 a.m. on [Day 2] April, six police officers from the law enforcement brigade of PSB surrounded my home. They broke in and searched. The police, without an arrest warrant, took me away and said they needed my assisting in the investigation. I sat in the [County 2] Detention Center for two days.

    The police questioned me several times and asked me for a list of those who opposed the demolition. Many neighbours trust me because I am enthusiastic about public welfare. They think I've studied abroad and seen the world, so they've commissioned me to communicate with the outside on their behalf to expose the local government's illegal activities. Facing questions from the police, I didn't give in. Because I refused to provide a list, the police fined me 1000 yuan and threatened me. If I got caught next time, they would sentence me.

    ·She claims that she sought help from the police.  She claims:

    I reported to the police, but they did not help. My action made myself in trouble. The police were used by the officials to persecute my family.

    ·She claims that she did not move to another part of the country to seek safety because:

    My family was so worried and wanted me to leave as soon as possible. In China, the police are a tool of government officials. The police cannot guarantee the safety of citizens, and on the other hand, the ordinary people are threatened by them.

    ·When asked what she thinks will happen to her if she returns to China, she claims:

    I am facing arrest and persecution because I oppose demolition and become an enemy of the government.

    ·She claims she will be harmed and mistreated if she returns.  He claims:

    The higher-level government supports the government of [County 1]. The officials use the power and relationship to persecute citizens, who try to protect their lawful economic interest. The police frequently visited my family to threaten my parents. The officials want me to go back and put me in jail.

    ·She does not think the authorities of China can and will protect her. She claims:

    Starting in July 2020, the Chinese government has been frantically persecuting dissidents. Professor Xu Zhangrun was arrested, tycoon Ren Zhiqiang was accused, and the government control of the people escalated. My family was questioned many times by the police. I will be caught when I go back.

    ·She claims that she will not be able to relocate within China where she would not be harmed because:

    I went to [Country 2] first, but I didn't find a chance to apply for protection. This time I came to Australia and wanted to wait until things calmed down before I went back. Starting in July 2020, the Chinese government has been frantically persecuting dissidents. Professor Xu Zhangrun was arrested, tycoon Ren Zhiqiang was accused, and the government control of the people escalated. My family was questioned many times by the police.

    In March 2021, government officials consulted with my parents. We thought this matter would end, but the officials deceived my parents. The official's purpose was to trick me into returning to China, and I was not fooled. [In] August 2021, the police came to my house to search and beat my father. The police will not let me go. I will be caught when I go back. I have lived in Australia for more than a decade, and I love this country. Please let me enjoy peace and freedom here.

  14. On 1 December 2023, the applicant was sent a letter to her authorised email address by the Department under s 56 of the Act. In that letter, the Department sought additional information and documents in support of the applicant’s claims. The applicant was given a specified timeframe to provide this information and material to the Department.  As at the time of the Department’s decision, the applicant had not provided any further information or material in response to the Department’s letter.  The Department provided with making its decision on the applicant’s protection visa application based on the information before the Department.

    Evidence given to the Tribunal

    First hearing 28 May 2025 (Adjourned)

  15. On 28 May 2025, the applicant attended the hearing notwithstanding that there had been no communication at all by the applicant leading up to the hearing date and after attempts had been made by the Tribunal to communicate with her about the upcoming hearing. The Tribunal proceeded with a short hearing and, after discussion with the applicant about her contact details, adjourned the hearing to be resumed at future date.  The Tribunal reminded the applicant to keep the Tribunal updated with her contact details and change of circumstances.

    Resumed hearing 2 July 2025 (Completed); Follow-up hearing 14 July 2025

  16. On 2 July 2025, the Tribunal had the benefit of a full hearing with the applicant to make further enquiries about her claims.

  17. On 14 July 2025, after having considered the applicant’s evidence from the previous hearing (heard on 2 July 2025), the Tribunal had the benefit of a further hearing with the applicant to make enquiries about matters that arose in response to queries raised by the Tribunal at her 2 July 2025 hearing.

  18. The applicant gave the following oral evidence in support of her claims as summarised from her two hearings:

    ·She lived in [County 1], Shanxi Province, North China, prior to coming to Australia.

    ·She lived in [Community] in [County 1].  The community had [Number] residents or so living there. Her parents owned property in that community. She lived with her parents in that community.

    ·She is uncertain how many of the original residents still live in the community.

    ·She has a [sister], but does not know where she is living at this time.

    ·She presently has little contact with her parents.

    ·She had been funding her own studies in Australia as best she could at the time. She stopped studying in Australia in June 2021. Her visa was still valid at the time she stopped studying.

    ·She applied for her protection visa in August 2021.

    ·The main reason for her applying for a protection visa in August 2021 was because of her “mental breakdown” because of events that happened to her in China.  She made enquiries about what she could do to seek protection in Australia and was given advice accordingly by someone. She came to Australia as soon as she could.  She did not want to stay in China because it was too dangerous for her. She did not know that she could apply for a protection visa.  She did not know initially about a protection visa.  She did not know her situation back in China made her “eligible for a visa”. 

    • She stated that all she wanted to do was to escape from China.  She was lucky that her tourist visa enabled her to travel to Australia. At the time, she thought that she would do everything she could to remain lawful in Australia so that she did not have to go back to China.  She had to remain lawful in Australia, so she continued to study as a good student.  She had hoped that things would change in her country so that she would be safe to go back home.  However, she fears returning due to what happened to her when she was last there.

    ·When asked about when the demolition notice for [Community] was issued by the authorities, she stated it was in March 2019.  She explained that one or two weeks after the demolition notice was issued by the authorities for [Community] there were aggressive men going door to door and asking residents to sign the agreement. However, the community did not agree to have their community buildings demolished.  There had only been one formal notice given to the community that their buildings would be demolished.  No-one in the community agreed for it to happen.  The authorities had offered no compensation or alternative arrangements for the community.

    ·The date for demolition had been scheduled.  There were many people who came to the property to carry out the demolition.  However, when they arrived the applicant and all the other members of the community stood up to them and prevented them from starting their demolition works. The applicant’s parents and her aunt all lived in [Community]. The applicant and her parents and aunt refused to sign the agreement which was forced upon them.  A dispute arose from this.  The situation became quite chaotic.  At that time, she tried to call the police but they hung up on her and did not send any police over to the community to help.  

    • On the second day of the dispute, the applicant took the initiative and went directly to the police, on behalf of the community, to report what had happened the day before. They told her they would investigate the matter but did not make a detailed record. 
    • After having made the report, a few police officers came to her property soon after and requested the applicant and her family to cooperate with the investigation.  They subsequently put the applicant and the applicant’s father’s [sister] in detention for two days. 
    • The applicant and her aunt were randomly questioned at the police station while in detention. They were asked why they objected to the demolition notice.  The applicant was asked reasons for her objection and then she was asked to provide names of residents who opposed the demolish. She refused to provide these names.  They were accused of disturbing public security and fined 1000 yuan. At the time, they were threatened to not disturb public security. 
    • After they were released, she noticed people following her. She had no doubt she was being monitored. They were the same people following her each time. These people came to her home.   People came to her aunt’s home as well.  She believed that her aunt and herself were being targeted at the time because they led the way in opposing the demolition of community buildings and holding up the demolition. 
    • During that period, the applicant and her aunt felt threatened and intimidated because of their stance on behalf of the community. Soon after, her aunt went missing.  The applicant’s family contacted the police who dismissed them, stating that it was too early to declare her missing.  They searched for her aunt over the next three days after she went missing.  On the third day, they found her aunt’s body in [a location]. It appeared that she had [died in a specific way].
    • They called the police.  The police concluded that her aunt had committed suicide.   However, all the family did not believe this to be the case. They were all convinced that she met with foul play because of the stance she took against the authorities with the applicant and aiding in stopping the demolition.
    • When asked whether that was when she wanted to leave China, she stated that, at the time, she did not think about leaving China, but she wanted to leave her community as fast as she could and go to a safer place.
    • When asked where she had wanted to go that was safe for her, she stated that she did not have a specific place in mind.  She just wanted to get away from her home to any place that was safe for her. 
    • When asked if she was being monitored by the authorities after she was released from detention, she stated that she was being followed outside her home.  She also had strangers coming to her home and making enquiries about her.
    • The applicant became fearful for her life after the death of her aunt and after she believed that she was being monitored herself. The applicant sought help from a friend in another area away from the community.  She stayed with her for about one month.  She then left for Australia in August 2019.  She left China because she was fearful of what would happen to her if she stayed.  She just needed to escape, and she decided that she could do that safely in Australia as she had done this in the past. She wanted to be away from her home so that she would not be found. She left China in fear of the authorities.
    • When asked what she feared the authorities would do to her, she stated that she was fearful that the same thing that happened to aunt would happen to her.  She was fearful for her safety.
    • When asked whether she was fearful when she departed at Beijing airport for Australia, she stated that she was.
    • When asked whether these claims (as made in her application and expanded upon at the hearing) were her main claims, she stated they were. 
    • When asked whether there was any other claims she wanted to raise for not wanting to return to China, she stated that if she returned the authorities would target her and they would then target her family members because she had returned.   
    • When asked why Professor Xu and Tycoon Ren were raised as part of her claims, she stated because they were from the same region as herself and they also opposed the authorities, and they were persecuted as well.   
    • When put to her that she had raised some new claims about her father and herself being injured when their community were attacked, the applicant stated that she had raised her claims from the beginning (the same claims that she spoke to at the hearing) but did not know that she had to give specifics to the claims being made.  She had little assistance at the time in putting together the application. She stated that she had also been physically and verbally assaulted in China. However, she did not have medical reports to prove the injuries.
    • When asked about the injuries to her father, she explained that it occurred when the men who came to give them notice of demolition were obstructed by the applicant and her father. Her father was trying to protect the applicant and as a result he had his arm broken and the applicant received lacerations. She stated that she had mentioned in her application that her father had been beaten and that this was reported to the police but did nothing about it.
    • When asked about why she did not mention her aunt’s death in the application, she stated that she did not want to bring her aunt up again.  She stated that her aunt’s death has been a traumatic event in her life.  She stated that her aunt had died, and she wanted to leave this behind her. 
    • When put to her that she did not raise specifics about the attacks on her own person by the men who came to her house to issue the demolition notice, she again stated that she did not think that she had to go into specifics of the events.  She believed that she only needed to mention the events that occurred in her application. She believed that she would have the opportunity to speak to the events at the hearing.
    • When questioned about the men who entered her home, she clarified that four or five men came into her home and attacked her father and herself but that about 40 to 50 men came into the community to carry out demolition work.
    • When asked to clarify about the inaction by the police to her pleas to help her and her community, she stated that the police did not show up at all on the day the men came to her community.  The applicant had called the police herself. The police simply hung up on her and did not follow through with the call.   When they were called again, they advised that they would come to investigate that day but never did. 
    • When asked to clarify her stay with a friend for one month after she was released from jail, she stated that, after the incident occurred, her parents asked her to leave home.  She went to other places for her own safety and ended up staying with a friend for one month away from her home area.
    • When it was put to her that she had departed Beijing airport without adverse attention from the authorities, she stated that she was not a criminal and therefore would not have come to the attention of Beijing authorities at the time.  She was not on a criminal list.  If she was, this would have been distributed to the airport and she would have most likely been arrested. She was extremely worried about departing from China thinking that she might be caught.  She stated that her actions in her community impacted her and her family on a local government level because of her opposition to the demolition of the community which had been approved and endorsed by local authorities. It was the local authorities who wanted to prosecute her.  At the time, they would not have distributed her name to international airports to restrict her freedom.  At the end of the day, she was lucky to arrive in Australia without being found by Chinese authorities.  
    • When put to her that she applied for protection two years after she arrived on a tourist visa to Australia, she stated she initially came to Australia on a tourist visa.  She simply wanted to escape China which had become a dangerous place for her. After she came to Australia, she continued to follow the situation in China.  Because a tourist visa would only allow her to stay in Australia for a limited time, she had to apply for a student visa to allow her to stay longer. She was not in any headspace to think of applying for a protection visa which she did not know anything about.  She had a mental breakdown along the way because of what happened in China.

    ·When asked why she specifically would be targeted and not other members of the [Community], she stated it was because she was the one who stood up to the authorities at the time. There was a demolition notice for them to leave and they were given one month to do so. It was her opposition that put a stop to them doing this. The demolition of the community was sanctioned by local government authorities, and she did what she could to stop this. 

    ·When asked why she had not provided medical reports about her mental health, she stated that after the incident in China, her mental health began to deteriorate. She has been seeing a psychologist in Australia on a regular basis because of what happened in China and because of her fear in returning.

    ·When asked why [Community] was chosen for demolition, she stated that it is a small town of about [Number] households.  The authorities believed that they would not have opposition when carrying out their work.  She was able to mobilise the households to stand up against the demolition company who was sanctioned by the government to carry this out. She stated that many people followed her because the local towns people saw the applicant as well organised and having been educated abroad. She was nominated by the community to speak on their behalf. The applicant and her aunt both represented the community at this time. 

    ·When asked again to speak about her detention, she stated that it occurred on or about [Day 2] April 2019. This was two days after she had made a report to the police about the damage that was being caused at the community by the men who came to carry out demolition works. They were detained at the police station in [County 1]. They were detained for two days. She was asked to provide a list of names to the police of agitators which she did not do. She was charged and found guilty of disrupting social order in the area. They were threatened to not breach the peace again.

    ·When asked again why she was not of adverse interest to the Chinese authorities upon her departure from Beijing airport, she stated that, firstly, though she was detained and charged and convicted, she was not convicted of a criminal offence that warranted her being stopped at international airports. Secondly, she believed that the local authorities and officials, as well as the construction company, wanted to harm her because she had damaged their interests.   Thirdly, she believed that she departed fast enough before her name could be passed through the system anyway. She felt very lucky that she had departed Beijing airport without being arrested.   

    ·When asked whether her family have had any adverse interest from the authorities since she had arrived in Australia, she stated that they have had their home raided on several occasions for no reason at all by local authorities.

    ·When asked whether the police could protect her, she stated they could not, given their past history already in not protecting her or her family. She stated that they support the local government authorities.

    ·When asked why she could not safely relocate elsewhere in China, she stated that “bad” people have money.  She stated that it was evident already that she has been threatened by local government officials for interfering in demolition and construction work in her area. While she is there to threaten their interests, they will find a way to do harm to her. She stated that she only stayed one- or two-months in Zheng Zhou, which is a city in Henan Province.  She was in that city because she had a friend who was living there.  She went there because she had nowhere else to go.  She went there after April 2019 because she was scared. Otherwise, she has lived most of her life in [County 1], Changzhi city.

    ·She stated that she has lived with depression since leaving China and has not been able to live a normal life as a result.

    Post-hearing material

  1. On 14 July 2025, the applicant provided the following further material in support of her claims:

    ·Medical report from [Family Practice] dated 24 May 2022 indicating that the applicant presented with anxiety and depression and has had a past history of anxiety and depression, and that she was presently on a mental health plan.

    ·Medical report from [Family Practice] dated 8 July 2024 indicating that the applicant was being managed for anxiety and depression.

    ·Medical report from [Family Practice] dated 15 November 2024 indicating that the applicant was being managed for anxiety, depression and stress.

    ·Medical report from [Family Practice] dated 10 July 2025 outlining that:

    oThe applicant has been a long-term patient with the practice since 22 October 2021.

    oShe presented initially with long term history of mental health concerns.

    oShe had already been seeing a psychologist and psychiatrist.

    oShe had renewed her mental health plan with their practice on 24 May 2022 for ongoing therapy.

    oShe has had multiple consultations at the practice since 2021 for mental health review, medication and referrals to specialists.

  2. On 18 July 2025, the applicant provided the following further material in support of her claims:

    ·Medical referral from “[Doctors]” outlining the applicant’s mental health state. 

    Country information

  3. The Tribunal notes several news articles reporting on a pattern of violent incursions into towns and villages (endorsed by local authorities) by construction companies and their workers in various parts of China.[1]

    [1] See Caixing Global, “In Depth: The Violence Behind ‘Shantytown’ Redevelopment”, 16 September 2019, In Depth: The Violence Behind ‘Shantytown’ Redevelopment - Caixin Global;  Science Direct, “Does urban housing demolition increase wealth inequality in China?”, July 2024,
  4. The Tribunal has considered DFAT Country Information Report – People’s Republic of China dated 3 October 2019 (which was relevant to the applicant’s timeline of events in 2019) whereby “the central government no longer accepts petitions that should be lodged at local government level. … Sources report that local officials are encouraged to ensure protests do not reach Beijing”:

    Despite recent reforms leading to improved legal protections for property ownership and compensation for expropriated land, protests and petitions related to land seizures by officials and the conduct of developers remain common in China. According to the State Bureau of Letters and Calls (the national department responsible for local petitioning offices) in 2014, an estimated four million disputes over expropriated land and property demolitions occur every year. DFAT is aware of, but cannot verify, reports describing aggressive, and sometimes violent, action by private security contractors hired by property developers to manage protesters [3.135].

    China’s Constitution and State Compensation Law (1994; amended 2010) enables citizens to seek compensation from the state but the public’s confidence in the judicial system and ability to afford lawsuits is generally low. The Chinese Government encourages Chinese citizens to submit complaints through government-controlled websites and local petitioning offices. Under regulations promulgated in 2014, the central government no longer accepts petitions that should be lodged at local government level. The regulations include measures designed to improve transparency and responsiveness. Sources report that local officials are encouraged to ensure protests do not reach Beijing. The SCS can be used to restrict movement of people to prevent them from travelling to Beijing to petition the government [3.136].

    In practice, the treatment of individual cases depends heavily on the attitude of local officials towards the individuals and circumstances in question, making it difficult to generalise [3.137].[2]

    [2] DFAT Country Information Report – People’s Republic of China (3 October 2019), Paragraphs 3.135 to 3.137

  5. The most recent DFAT Country Information Report – People’s Republic of China dated 27 December 2024 (DFAT Country Information Report) notes the “Security Situation” in China as follows:

    2.65 China has a vast security apparatus comprised of law enforcement, military, paramilitary, governmental and intelligence agencies. China’s Ministry of Finance reported that 6.1 per cent of national government spending in 2017 (approximately AUD255 billion) was appropriated to domestic security. Exact numbers of security personnel are not publicly available, however the Party Committee of the Ministry of Public Security confirmed in 2022 that 1.9 million police officers worked in public security organs across China and possessed at least basic qualifications in law enforcement.

    2.66 According to research compiled by Comparitech and IHS Markit in 2023, China’s cities were under the heaviest CCTV surveillance in the world. 2023 estimates indicated there were at least 600 million surveillance cameras operating in China, or almost one camera for every two people. In China’s more developed cities, monitoring and surveillance capabilities were both pervasive and advanced. Facial recognition and other identity monitoring technologies were widely used in 2024 for surveillance, including to track the movements of those on a vast array of ‘blacklists’, like Uyghurs and Tibetans, former drug users, individuals with mental health issues and known activists. In-country sources told DFAT in 2023 that CCTV surveillance had become so pervasive, with such a high level of coverage, that an individual’s movements could be tracked in real time.

    2.67 Violent crime was uncommon in China in 2023 and according to international media, continued to decline. However, petty crime, scams, and isolated bandit attacks in very remote border areas still occurred.

    2.68 Threats to national security related to ‘terrorism’ and ‘civil unrest’ were low in 2023, however, isolated incidents occurred. For example, violent clashes broke out in Nagu, Yunnan in May 2023 between locals and the police who were attempting to demolish the dome of the historic Najiaying Mosque. In November 2022 large labour demonstrations occurred in Guangzhou.

    … … …

    2.71 Laws in China maintain a broad definition of ‘national security’ and ‘protected information’, leaving significant room for interpretation by security authorities, including under the Anti-Espionage Law (2023) and 2024 amendments State Secrets Law (1988). Those viewed as aiding foreign actions contrary to the CCP’s interests face severe legal consequences including life imprisonment and capital punishment.

    … … …[3]

    [3] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraphs 2.65 to 2.68, 2.71

  6. The DFAT Country Information Report notes that the political system in China is a one-party based governance system which carries down to subordinate provincial governments and autonomous regions such as prefectures, counties, autonomous counties, townships and villages:

    2.50 China is a one-party state governed by the CCP. While minor parties formally exist, they are vetted by, and are subordinate to, the CCP. The CCP’s main groupings in order of size (largest to smallest) and amount of real political power (least to most) are: the Central Committee, the Politburo and the Politburo Standing Committee (PBSC).

    2.51 From the 99 million members in Party cells, around 2300 delegates are elected to the National Party Congress, a conclave that meets every five years. The main function of the National Party Congress is to elect the Central Committee of around 380 members, which exercises the functions of the Congress outside of its five-yearly meeting. The decision-making body of the Central Committee is the Politburo, comprised of the 24 most senior members of the Party and exercising the functions and powers of the Central Committee out of session. Power is then further concentrated in the seven-member PBSC. Each member of the PBSC has a specific portfolio. The General Secretary (Xi Jinping) and the Premier (Li Qiang) are also members of the PBSC.

    2.52 Subordinate to the national government are provincial governments and autonomous regional governments. The autonomous regions are areas with high proportions of ethnic minorities, including Guangxi, Inner Mongolia, Ningxia, Tibet, and Xinjiang, who were nominally provided with a higher degree of autonomous decision making under the Constitution. Subordinate to provincial governments and autonomous regions are prefectures, counties, autonomous counties, townships and villages. Beijing, Chongqing, Shanghai, and Tianjin are municipalities directly subordinate to the national government. The CCP is embedded in each level of government and reports upward from the village level right through to the national level in Beijing.[4]

    [4] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraphs 2.50 to 2.52

  7. The DFAT Country Information Report notes the following information relating to local conflict with authorities arising over land and development matters:

    3.147 Public demonstrations require permits, which are rarely approved by authorities. Still, spontaneous protests occur, which have been met with police violence. In-country sources told DFAT in 2023 that all types of protests had become much less common, as the consequences for dissent had become harsher in the last decade. Freedom House's China Dissent Monitor recorded a total of 383 protests from January to September 2024, the vast majority of which were non-political and related to workers' pay and benefits, land or forced relocation disputes, and housing projects [emphasis added].

    3.148 Local disputes with government decisions and officials can be raised at designated petitioning offices in China. Millions of disputes are raised at these offices every year. Local authorities participate in programs that incentivise dispute resolution at the local level, to avoid escalation to higher authorities. In practice, this means local authorities often have motivation to retaliate against petitioners, which might include laying charges for ‘picking quarrels and provoking trouble’. The US Department of State reported in 2023 that local governments had sent personnel to Beijing to force petitioners in the capital to return home. Although retaliation was common, it was not always the outcome, and in some cases the system was effective in resolving disputes.

    3.149 In-country sources told DFAT in 2023 that land disputes, local corruption, and labour disagreements were common protest themes. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. While land policies and the process of compulsorily acquiring land varied from place to place, all land in urban areas continues to be owned by the state and rural areas were collectively managed by villages. Disputes often arose when local officials tried to sell land and evict existing tenants after paying low amounts of compensation [emphasis added]. China’s Civil Code (2020), which came into force on 1 January 2021, requires fair and reasonable compensation to be paid for expropriated land, however, it did not define ‘fair and reasonable’, leaving room for interpretation. Specific documentation provided to those who have had land expropriated differs from province to province. Land sales remain an important source of revenue for local governments and corruption in land deals was commonly alleged. In February 2024, international NGOs reported several hundred Tibetans had been detained in Derge County, Sichuan for protesting the construction of the Kamtok (Gangtuo) dam that would displace local villagers and destroy Buddhist monasteries. International NGOs stated that video footage showed police beating protesters before making arrests, and detainees were held incommunicado and denied access to legal representation.[5]

    [5] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraphs 3.147 to 3.149

    Consideration

  8. The Tribunal has had the benefit of considering the applicant’s claims in her protection visa application, as well as hearing her oral evidence supporting her claims at two separate hearings.  The Tribunal has also had the benefit to consider her medical reports relating to her mental health concerns going back to 2021, which the applicant has claimed stem from the events that took place in China and her fear of being targeted by the authorities as a result of those events.

  9. The Tribunal notes that while the applicant gave minimal evidence following her written claims and did not respond to the delegate’s 56 letter sent to her, the Tribunal accepts that her severe anxiety and depression which was diagnosed since at least 2021 (and supported by the documents provided to the Tribunal) have been part of the reason for her not being able to respond to requests to provide further material and information in support of her claims. It also accepts her oral evidence at the hearing that she did not raise specific details about her claims because she believed that providing general aspects about her claims were enough.  The Tribunal finds on the evidence that the applicant has been generally consistent with her claims and has provided substantial oral evidence at two hearings to support why she made those original claims in the first place.

  10. Given the applicant’s extensive mental health medical history going back to 2021, the Tribunal accepts the applicant’s responses that she did not provide specific details in her initial application about important aspects of her claims such as injuries to her father and injuries to herself. The Tribunal accepts on the basis of the medical reports that the applicant was able to provide minimal amount of information when first making her claims but was not able to expand on these claims until the hearings themselves. The medical reports about her mental health provide enough detailed information about the applicant’s condition which is consistent with the applicant’s evidence that it has been hard for her to articulate past events in her life back in China which were the reason for her coming to Australia.  The several medical reports of the applicant’s mental health provided to the Tribunal is consistent with the applicant’s evidence that the events that she escaped from in China have been the cause of her mental health concerns.  The medical evidence points to her mental health concerns beginning soon after her arrival in Australia in 2019.

  11. The Tribunal accepts the applicant’s responses that her delay in applying for protection arose out of her mental health issues, given the extensive mental health reports provided to the Tribunal.  It therefore does not give weight to this delay at all when taking into account the genuineness or depth of the applicant’s fear of persecution.

  12. The Tribunal had the benefit of hearing the applicant’s responses to enquires by the Tribunal over two full hearings and found the applicant ‘s responses to those questions to be consistent with her original claims and with country information before the Tribunal. It found the applicant able to engage in depth to questions about the events that took place in her home area of [Community] and the aftermath of those events.  The Tribunal had the benefit of asking the applicant over two hearings to explain aspects of the events that occurred and found her responses to be consistent on each occasion. 

  13. The Tribunal accepts her responses as consistent with country information about why she would not have been arrested or questioned at Beijing airport for being on a watch list or a stop list upon her departure given that, according to the relevant 2019 DFAT report at the time, central government no longer accepted petitions of complaint that should be lodged at local government levels and that any treatment of individual cases depended heavily on the attitude of local officials.  The Tribunal accepts therefore that the applicant would not be placed under a stop or watch list on leaving China given that the events that transpired occurred in her home area and under local and county authorities.  Therefore, it is unlikely that that the applicant would be on a national stop list or watch list at that time, and that surveillance procedures, while advanced in 2019, have increased in advancement in recent times as indicated by recent country information.

  14. The Tribunal found that the applicant was able to speak in depth and with consistency over the two hearing about the events that occurred at [Community] which led to her coming to Australia, how she was involved in those events as a spokesperson for the community in the protest against the developers, the events that led to her arrest, the dates of her arrest, the length of time in detention, as well as the charges and conviction itself.  The Tribunal, from its own observation at the hearing, found the applicant to be genuine in her evidence of her grief for the loss of her aunt and the guilt that she felt when her aunt was found deceased in [a location]. The applicant remained consistent with the telling (over two hearings) of the events that led to her aunt’s death and her suspicions that she died as a result of leading the protests with the applicant against the developers and local government officials.

  15. The Tribunal accepts as plausible her claims that she was asked to lead the protest on behalf of the community in an effort to stop the developers carrying out demolition of the community because she was seen as a leader of the community due to her background as a student who had previously studied overseas.  The Tribunal has no evidence before it to not accept this claim. 

  16. Given the Tribunal’s benefit of hearing the applicant’s evidence about her claims over two full hearings, and given the country information before it that supports the claims that communities were being demolished at a local level in various provinces throughout China in 2019, the Tribunal accepts the applicant’s claims as follows:

    ·That she lived in [Community], [County 1].

    ·That her community were subject to a demolition order issued by developers and supported by government officials.

    ·That the applicant and her aunt acted as spokespersons and leaders on behalf of the community in resisting the developers carrying out demolition of their community and opposing local officials who endorsed this demolition.

    ·That the applicant and her father were injured during the applicant’s attempts to stop the developers carrying out demotion orders.

    ·That the applicant received no support from local police.

    ·That the applicant was subsequently charged, arrested and detained for two days as a result of her active protest of stopping the developers.

    ·That the applicant was subsequently released with conditions.

    ·That the applicant was subsequently monitored after her release.

    ·That her aunt died tragically, and that the applicant believes that she was killed as a result of her part in the part in the previous events.

    ·That the applicant left home in fear of her safety and remained for a short time at a friend’s house away from her community.

    ·That the applicant came to Australia in fear of her safety.

    ·That the applicant’s mental health issues stem from her past experiences and harm suffered by developers and local officials in [Community], [County 1].

    Is there a real chance the applicant will suffer persecution in China if she was to return in the reasonably foreseeable future.

  17. The Tribunal finds that the applicant’s ‘home area’ upon return to be [County 1].

  18. The latest DFAT Country Report Country on China states that “[f]acial recognition and other identity monitoring technologies were widely used in 2024 for surveillance, including to track the movements of those on a vast array of ‘blacklists’, …, individuals with mental health issues and known activists. In-country sources told DFAT in 2023 that CCTV surveillance had become so pervasive, with such a high level of coverage, that an individual’s movements could be tracked in real time [emphasis added].” [6]

    [6] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraphs 2.65 to 2.68, 2.71

  1. The latest DFAT Country Report Country on China is clear in its reporting that “people who organise or lead protests over land, local corruption, labour or any other matter critical of the government [emphasis added] or CCP, face a high risk of official discrimination in the form of technical and physical surveillance, harassment, detention and imprisonment.”[7]

    [7] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraph 3.156

  2. The latest DFAT Country Report Country on China also reports that “petitioners and those who participate in protests face a moderate risk of official discrimination in the form of technical and physical surveillance, harassment, and detention.” [8]

    [8] DFAT Country Information Report – People’s Republic of China (27 December 2024), Paragraph 3.156

  3. The Tribunal has found, on the evidence before it, that there is a real chance that the applicant will be perceived as both an organiser and lead person in protests over land, local corruption, labour or any other matter critical of the local and county governments, as well as a petitioner and someone who has participated in protests for the same reasons. The Tribunal finds on the country information before it, and on the acceptance of her claims, that there is a real chance that the applicant will face a moderate risk or a high risk of official discrimination in the form of technical and physical surveillance, harassment, and detention, as indicated by DFAT.

  4. Given these findings, the Tribunal further finds that as an organiser or leader person in opposition to the developers and government officials in 2019 and as a petitioner on behalf of the [Community] against the developer’s demolition notice which had the support and endorsement from government officials, the applicant’s actions would be seen as political in nature and critical of local and county government authority.

  5. On the evidence before it, therefore, the Tribunal finds that the applicant fears persecution on the basis of her political opinion (imputed through her actions of being seen as an organiser and lead person in protests over land, local corruption, labour or any other matter critical of the local and county authorities).

  6. Given the evidence before it, and given also the country information before it, the Tribunal finds that there is a real chance that the applicant will suffer serious harm which includes a threat to the applicant’s life or liberty or significant physical harassment or significant physical ill treatment of the applicant as supported by DFAT’s report above. Given the evidence and country information before it, the Tribunal finds that there is a real chance that the applicant would face serious harm for reason of her (imputed) political opinion in the reasonably foreseeable future if she was to return to China.

  7. The Tribunal, therefore, finds on the evidence before it (including the country information), that the applicant fears persecution for reason of her (imputed) political opinion and that this reason is the essential and significant reason for the persecution (as required under s 5J(4)(a) of the Act), that the persecution involves serious harm to the applicant (as required under s 5J(4)(b) of the Act), and that the persecution involves systematic and discriminatory conduct (as required under s 5J(4)(c) of the Act), as it is not random and targeted towards members of the group.

  8. The Tribunal finds on the country information before it that effective protection will not be available to the applicant given that the persecution will be carried out by either local, county or state authorities and that these authorities will be the perpetrators of this harm.  On this basis, the Tribunal therefore finds that the applicant will not be able to safely relocate to another part of the country.

  9. The Tribunal finds that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution in China. Any modification of concealing an innate or immutable characteristic would fall within the exception in s 5J(3)(c)(iii) of the Act. 

  10. The Tribunal, therefore, finds on the reasons given above that the applicant has a well-founded fear of persecution if returned to China in the reasonably foreseeable future and is, therefore, a refugee within the meaning of s 5H(1) of the Act.

  11. Based on the available evidence before it, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and that s 36(3) is therefore not applicable.

  12. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

  13. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.

    Completed hearing date:     2 July 2025    

    Further hearing date:          14 July 2025  

    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.



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