2428895 (Refugee) - [2024] ARTA 727

2428895 (REFUGEE) [2024] ARTA 727 (3 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2428895
Tribunal:General Member M Poon
Date:3 December 2024

Place:Brisbane
Decision:The Tribunal affirms the decisions under review.

General Member M Poon

Statement made on 3 December 2024 at 2.01pm

CATCHWORDS
REFUGEE – protection visa – China – business investment lost after local government breached contract, with heavy financial losses – threatened, business partner arrested and detained, workers summoned or monitored – dispute with another company, the boss of which is related to local official – undetailed claims and no supporting evidence – consent to decision without hearing – responsibility to specify claims and provide sufficient evidence – country information – exit procedures – no profile of interest – member of family unit wife – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(ii)
CASES
Chan v MIEA (1989) 169 CLR 379
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 (“the Department”) on 4 August 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth)[1].
[1] Unless otherwise stated, all references to legislation are to the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)
The applicants are spouses and are both nationals of China. The applicants applied for the visas on 28 June 2023. The Department’s delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia owes protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (“the 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. This decision and statement of reasons is made by the Tribunal.
On 12 November 2024, the Tribunal invited the applicants to give oral evidence and present arguments at a hearing. The hearing invitation included the following:
Please note that if you request the Tribunal to make a decision without a hearing, and
the Tribunal proceeds to make a decision because it considers the issues can be
determined in your absence, this does not guarantee you will receive a favourable decision.
The hearing notice also provided the following invitation to submit additional information:
Please use the ‘Response to hearing notice’ form attached to this letter or attach additional information if you have any requests or any new information which you wish us to consider. Any documents or written submissions sent to us should be in English or translated by a qualified translator.
By email on 29 November 2024, the applicants responded to the Tribunal’s hearing invitation with their completed “Response to hearing notice”. That form was signed on 29 November 2024. The primary applicant ticked “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing” and the secondary applicant ticked “No” to the question “Will the following applicant also participate in the hearing?”. No additional information or submissions in support of the protection claims were provided by the applicants.
On 2 December 2024, the Tribunal acknowledged receipt of the applicants’ requests and confirmed that the hearing would be cancelled, that the Tribunal would proceed to determine the issues in their case in the absence of a hearing and that they would be notified of the decision in due course.
Section 106(1) of the Administrative Review Tribunal Act 2024 (Cth) (“the ART Act”) allows the Tribunal to make its decision without holding a hearing in certain circumstances. Such circumstances include those specified in s 106(3) of the ART Act, namely, when the only parties to the hearing are the applicant and a non-participating party, and the applicant requests the Tribunal to make its decision without the hearing, and it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties.
There is no ambiguity in the responses from the applicants and I am satisfied that their responses to the hearing invitation constitute a request under s 106(3)(b)(ii) of the ART Act.
The issue which requires determination is whether the primary applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to China; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa).
The question of whether the secondary applicant meets the criterion for protection under ss 36(2)(b) or (c) depends on whether the issue in the preceding paragraph is resolved in favour of the primary applicant.
In this case, the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The Tribunal has before it a copy of the Department’s file, including the applicants’ protection visa application form, the protection claims, and the delegate’s decision record.
I have assessed the materials before me, and the application does not raise any complex factual or legal issues. I am satisfied that the materials enable me to form conclusions about whether the applicants meet the criteria for a protection visa in s 36(2) without a hearing.
BACKGROUND
The applicants’ claims
The applicants are a married couple, with the primary applicant being the husband. The secondary applicant did not raise her own claim for protection; rather, her claim is to be a member of the same family unit as defined in s 5(1), as the primary applicant.
The primary applicant’s claims for protection are contained in their protection visa application form and attached statement. The primary applicant’s claims are as follows:
·At the start of 2022, he and his friend [Mr A] invested in [Company 1]. After almost a year of operations, the local government breached its contract and took back [Industry 1] rights. The primary applicant, [Mr A] and [Company 1] suffered heavy financial losses as a result.
·The court refused their attempt to file a lawsuit and no one has been compensated for their financial losses. When they complained to the higher-level government, they were repeatedly intercepted and threatened by the authorities with illegal violence.
·[Mr A] was arrested and detained [in] March 2023 and the primary applicant fled China thereafter.
·In or around December 2022, [Company 1] also had a dispute with [Company 2]. [Company 2]’s boss is [Mr B], [a relative] of [a public official] of Chongqing City. Many people say that in [Industry 1] in Chongqing, whoever offends [Company 2] cannot continue to operate.
·[In] January 2023, [Company 1] was framed by the Wanzhou District Government of Chongqing. The officials illegally withdrew the right to [operate in Industry 1] and regarded the previous [Industry 1] dispute as “picking quarrels and provoking trouble”. More than 20 people, including [Company 1]’s management and employees were summoned by the Wanzhou police or placed under residential surveillance.
·The primary applicant and [Mr A] thought [Mr B] had directed the summons and it may have been with connivance and assistance from the city’s [public official].
·[Mr A] collected evidence of [Company 2]’s illegal [Industry 1 operation], and the primary applicant wrote a complaint letter which [Mr A] gave to the Chongqing Municipal Supervision Department. They also filed a complaint with the court. None of those actions worked.
·At the end of January 2023, [Mr A] went to Beijing to submit materials to the Central Supervision Department. [Mr A] was arrested by the police and sent back to Chongqing for detention and has been in detention until now.
·[In] February 2023, the police took [Mr A] to the detention centre. Several police officers beat and tortured [Mr A] in the interrogation room. They asked [Mr A] if he sued the city’s [public official], but [Mr A] gritted his teeth and said nothing. [Mr A] had bruises all over his body and his left calf was maimed.
·After learning about [Mr A]’s situation, the primary applicant knew the [public official]’s family would not let him go so he found an opportunity to seek refuge in Australia. [Mr A]’s family told the primary applicant that the police have recently stopped allowing family visits so they are worried [Mr A] might die in prison.
The Department’s decision and reasons
On 12 March 2024, the Department notified the applicants that it needed more information from the primary applicant to assess his claims. The Department did not receive any reply from the primary applicant.
On 4 August 2024, a delegate of the Department refused to grant the applicants protection visas, essentially because the delegate found that the primary applicant’s claims that he has concerns about his and his wife’s return to China, were not credible.
The reason the delegate did not find the primary applicant’s claims credible is because the claims lacked sufficient detail or supporting evidence. For example, there was no supporting evidence of the government’s breach of contract or the dispute with [Company 2], such as copies of the complaint documents. Nor did the primary applicant provide any details of how he was intercepted and threatened by authorities with illegal violence, or how he participated in [Company 1]’s dispute with [Company 2] while living in [Country 1] between [May] 2006 and [June] 2023.
Consequently, the Department’s delegate was not satisfied that the primary applicant is a refugee as defined in s 5H(1), or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning to China, there is a real risk that he will suffer significant harm as defined in s 36(2A). The delegate was therefore not satisfied that the primary applicant is a person in respect of whom Australia has protection obligations.
In relation to the secondary applicant, as stated above, she did not raise her own claims for protection and claimed to be a member of the same family unit as defined in s 5(1), as the primary applicant. As the delegate had refused the primary applicant a protection visa, it followed that the delegate also refused the secondary applicant a protection visa as she did not meet the requirements in ss 36(2)(b) or (c). That is, the secondary applicant is not a member of the same family unit as a non-citizen who holds a protection visa of the same class, and who is a person in respect of whom Australia has protection obligations.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36, as well as the Migration Regulations 1994 (Cth) at Schedule 2. An applicant for the visa must meet one of the alternative criteria in ss 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.
MY FINDINGS AND REASONS
The issue for determination is whether the primary applicant is a person in respect of whom Australia has protection obligations.
For the reasons set out below, I find that the primary applicant is not such a person and therefore, the secondary applicant does not meet the criteria for a protection visa either.
Consequently, I have concluded that the decision under review should be affirmed.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499, I have taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department, 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.
Does the primary applicant satisfy the refugee criterion for protection?
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”.
The concept of “real chance”, in assessing well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court[2] as a substantial chance, as distinct from a remote or far-fetched possibility. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J[3].
[2] See Chan v MIEA (1989) 169 CLR 379 at 389
[3] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) at p 171
Section 5AAA provides that it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the decision-maker required to accept uncritically, any allegation made by an applicant[4].
[4] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70
The Department letter dated 12 March 2024 clearly specified the deficiencies and inconsistencies in the primary applicant’s claims. It invited the applicants to provide more information and evidence, or the reasons why they could not provide same. The applicants did not respond to the Department.
As stated above, the applicants also declined the Tribunal’s invitation to attend a hearing or to provide further information, in support of their claims.
I am satisfied that if the applicants did have further evidence or details that support their claims, or an explanation for the absence of same, they would have provided them to the Department and/or the Tribunal.
Given the [Industry 1] disputes with [Company 2] and the local or district governments occurred in 2022, it is reasonable to expect some documentary evidence to be available, such as a copy of [Company 1]’s [Industry 1] contract, the complaint letter written by the primary applicant himself, the complaint filed with the court, or company documents showing the primary applicant’s financial interest and role in [Company 1].
Weighing against the applicants’ claims is the following country information:[5]
·Exit and entry is strictly regulated, and the government knows when people enter or leave the country through air and seaports. It is almost impossible to exit China without authorities’ knowledge.
·Persons of interest on national security grounds or suspected of a crime, activists and human rights defenders may be prevented from leaving China due to being on an exit control list.
[5] Department of Foreign Affairs and Trade Country Information Report People’s Republic of China (22 December 2021) at paras 5.31 – 5.35
I have compared the above country information with the apparent ease with which the primary applicant was able to depart China after [Mr A]’s arrest and detention [in] March 2023, and after they “were repeatedly intercepted and threatened by the authorities with illegal violence”.
As stated above, the applicants have had a reasonable opportunity to provide further details in support of their claims. There are no details before me as to the extent of the primary applicant’s financial loss from the termination of the [Industry 1] rights or about the repeated interception and threats by the authorities. Consequently, I am not satisfied that the primary applicant himself suffered harm or threats, or that he had a significant role in [Company 1]’s dispute with [Company 2] or the government, or that he is a person of adverse interest to authorities.
Considering all the above, I am not satisfied that there is a real chance that, if the primary applicant returned to China, he would be harmed or persecuted for his involvement in [Company 1]’s dispute with [Company 2] or the government, or for his opinion about the government.
Therefore, the primary applicant does not meet the refugee criterion for protection in s 36(2)(a) and it follows that the secondary applicant does not meet the criterion for protection in s 36(2)(b).
Does the primary applicant satisfy the complementary protection criterion for protection?

Having concluded that the primary applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
The “real chance” test for the refugee criterion is substantially the same as the “real risk” test for the complementary protection criterion[6]. As explained above, I am not satisfied that there is a real or substantial chance of harm or persecution to the primary applicant if he returns to China.
[6] MIAC v SZQRB (2013) 210 FCR 505; See also MZYXS v MIAC [2013] FMCA 13 (upheld on appeal in MZYXS v MIAC [2013] FCA 614) at [19]
For the same reasons, I am not satisfied that there is a real risk of significant harm to the primary applicant in the reasonably foreseeable future, if he returns to China. It follows that I find that the primary applicant does not meet the complementary protection criterion in s 36(2)(aa) and thus the secondary applicant does not meet the protection criterion in s 36(2)(c).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
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.
…