2434443 (Refugee) - [2024] ARTA 713

2434443 (REFUGEE) [2024] ARTA 713 (29 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2434443
Tribunal:General Member M Bailey
Date:29 November 2024

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

Statement made on 29 November 2024 at 12:13pm
CATCHWORDS
REFUGEE – Protection Visa – China – substantial criminal record – criminal convictions in Australia for rape and sexual assault – fear of re-prosecution in China – localised societal stigma – mental health condition – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 65, 501, 499
Migration Regulations 1994, 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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the delegate) on 12 September 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review application was lodged on 20 September 2024 with the former Administrative Appeals Tribunal (the AAT). On 14 October 2024, 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.
BACKGROUND
The applicant, a [age]-year-old male, first arrived in Australia on [date] June 2012 as the holder of a Student (TU-573) visa. As outlined in documents submitted by the applicant to the Tribunal, he was granted permanent residency in Australia in February 2019. In October 2021 the applicant’s Skilled Independent (SI-189) visa, granted in February 2019, was mandatorily cancelled under s 501(3A) of the Act because he has a substantial criminal record.
The applicant’s request for revocation of the cancellation decision was refused. In July 2023 he applied to the AAT’s General Division for review of that decision. On 20 September 2023, the AAT set aside the non-revocation decision and substituted it with a decision that the mandatory cancellation of the applicant’s visa is revoked. The applicant’s visa was reinstated and he was released from immigration detention. In June 2024, the Minister for Immigration, Citizenship and Multicultural Affairs exercised his power under s 501BA of the Act to set aside the AAT decision and cancel the applicant’s Skilled Independent visa. The applicant has been in immigration detention since that time.
On 16 July 2024 the applicant lodged an application for a protection visa with assistance from a legal representative. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant provided a copy of the delegate’s refusal decision to the Tribunal as part of the review application.
The applicant provided a copy of the biodata page of his Chinese passport and his National Identity Card to the Department of Home Affairs (the Department) in support of his protection visa application. The delegate accepted that the applicant is a citizen of the People’s Republic of China (China). I find that the applicant is a citizen of China, and that China is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Relevant biographical information from the protection visa application is summarised below:
i.The applicant was born and resided in [a] village, [a] town, Shandong Province. He is of Han Chinese ethnicity and Buddhist religion.
ii.He completed high school in [year] and undertook a Diploma [between] 2008 and 2011 in Shandong Province. Between 2013 and 2015 he completed a [degree] at a university in [State 1].
iii.While in Australia he has been employed in various [roles], including as a [Occupation 1] between 2017 and 2019.
iv.He married in 2017 and has 2 children born in [year]. His wife and children are Australian citizens.
Regarding his claims for protection, he stated that he left China to study in Australia. His protection claims have arisen as a result of his criminal convictions in Australia for rape and sexual assault in September 2021. If he were to return to China, he fears that he will be arbitrarily subjected to detention and/or imprisonment for offences for which he has been punished in Australia. There is a real risk that he will be re-prosecuted in China for these offences. If he were detained or imprisoned in China, he would be exposed to inhuman or degrading treatment or punishment due to poor conditions in Chinese detention and prison facilities.
In support of the protection visa application, the applicant submitted the following documents:
i.Submissions dated 15 May 2023 from his legal representative in support of the request for revocation of the cancellation decision (Revocation Request Submission).
ii.Statement of the applicant dated 10 May 2023 in support of the revocation request (Revocation Request Statement).
iii.Article published in [media] in 2023 regarding the applicant’s criminal convictions and outcome of disciplinary [proceedings].
iv.Criminal Law of the People’s Republic of China.
v.DFAT Country Information Report: China, December 2021.
vi.US Department of State, 2022 Human Rights Report: China.
Revocation Request Submission
Information from this submission of relevance to the applicant’s protection claims is outlined below.
In September 2021 the applicant was convicted of 3 counts of sexual assault and one count of rape. The offences all took place on a single day in October 2019 against a younger female work colleague in the course of the applicant offering her a lift to the train station. While the applicant was sentenced to 2 and a half years imprisonment, this was partially suspended such that he served 15 months actual imprisonment (September 2021 to December 2022). His suspended sentence carries a 5-year operational period which will cease in December 2027.
Regarding Australia’s non-refoulement obligations, article 10 of the Chinese Criminal Law provides for re-prosecution of criminal offences committed overseas. This is acknowledged in the DFAT report which states that ‘double jeopardy’ is specifically allowed under Chinese criminal law. This gives rise to a real risk that the applicant could be re-prosecuted on return to China and subjected to a further term of imprisonment. The applicant believes the Chinese authorities would become aware of his offences and decide to re-prosecute him because of a combination of the following:
i.He received media attention due to his criminal proceedings and subsequent ban on employment as a [Occupation 1]. This included his personal details. The media reports, such as [media] article referenced above, remain available online.
ii.Rape is considered a very serious crime in China. The applicant is aware that some people convicted of rape in China are sentenced to death. The Chinese Criminal Law (Article 236) provides for the rape of a woman in a public space as an aggravating feature with a minimum sentence of 10 years imprisonment. The sentencing judge’s remarks note that the applicant’s offending was ‘somewhat brazen, occurring in a public area in the afternoon’.
iii.The applicant does not have a current Chinese passport and would need to apply for this while in detention or arrange an emergency travel document. His removal to China would involve the consent and knowledge of the Chinese authorities which would bring his criminal history to their awareness.
It is submitted that re-prosecution on return to China is at least possible and amounts to a ‘real chance’. The applicant’s detention and/or imprisonment for any period of time for offences for which he has already been punished would amount to an arbitrary deprivation of his liberty. Country reports on detention and prison conditions in China, including in the US State Department Human Rights report, indicate that the applicant would be subject to inhuman or degrading treatment or punishment if detained or imprisoned.
Regarding the issue of ‘impediments if removed’, the Revocation Request Submission includes reference to the applicant’s mental health issues, difficulties in securing employment and restrictions on relocating to an area outside his hukou (household registration).
It is submitted that the applicant has ‘significant mental health issues’. According to a 2023 psychologist report, the applicant presents with ‘Adjustment Disorder (with anxious distress)’ which would be exacerbated by his removal to China. The DFAT reports states that mental health services in China remain inadequate – particularly outside the provincial capitals – with low rates of treatment being in part due to social stigma and lack of funding and mental health professionals. There is a real chance that the applicant will encounter societal stigma and discrimination in China due to his mental health and be unable to access mental health treatment.
The applicant’s criminal history in Australia is likely to impact his ability to secure employment in China. His home village is a poor area with limited work opportunities. He would encounter difficulties in moving to another area because he can only access government services in the area covered by his hukou.
Revocation Request Statement
Additional information from this statement of relevance to his protection claims is summarised below:
i.His parents are in their [age] and currently reside in [Henan] Province. They are currently in a poor financial position and earn just enough money to survive. His mother runs a [shop] and his father works on a temporary basis in a warehouse. His other relatives in China live in different villages in remote areas and earn enough only to support themselves and their families.
ii.His hukou registration is linked to his parents’ local area of [a] village, [a] town, Liaocheng City in Shandong Province.
iii.If he were deported to China, his wife and children would remain in Australia. They are Australian citizens and do not hold Chinese citizenship. Even if they were granted visas to reside in China, they would experience many difficulties because they are not citizens including accessing government services, public education and employment.
iv.While in prison and immigration detention he has constantly worried about his family and what would happen if he were deported and separated from them. This has affected his sleep and he has been prescribed sleeping tablets in immigration detention.
v.He has never worked in China and it is very difficult for convicted criminals to find work, even in unskilled and low paid jobs. His father was recently asked to provide a criminal history check for a temporary labouring job in a warehouse.
vi.His only option would be to live with his parents in a small apartment above his mother’s [shop]. However, he would be unable to find work in that area. He could not work in his mother’s shop as she does not make enough to support herself.
vii.He would be unable to move away from the area linked to his hukou registration. It would be very expensive to live in an area where he would not have access to subsidised social and medical services. It would be very difficult to register for hukou in a different area.
The applicant was not invited to attend an interview with the Department. For the purposes of the refugee criterion, the delegate was not satisfied that the applicant’s claims related to any of the reasons in s 5J(1)(a). In assessing his claims under the complementary protection criterion, the delegate acknowledged that re-prosecution of crimes committed in another country is allowed under China’s criminal law. The delegate had regard to DFAT’s assessment that re-prosecution if ‘possible but unlikely’ with the exception of crimes involving sensitive issues – including of a political nature – or those which attracted significant media attention. Given the nature of the applicant’s offending, the delegate was not satisfied there was a real risk of re-prosecution on return to China.
Evidence before the Tribunal
Pre-hearing evidence
The applicant was initially legally represented in regard to his review application. His representative submitted to the Tribunal copies of the same documents provided to the Department, as referenced above, together with various identity documents including a Chinese passport issued to the applicant in [2023].
The applicant was invited to attend a Tribunal hearing on 30 October 2024. On 25 October 2024 the Tribunal was informed that the applicant had withdrawn his representation. On 28 October 2024 the applicant requested postponement of his hearing, stating that he required additional time to prepare for the hearing without a representative. The Tribunal agreed to the request and the hearing was rescheduled to 11 November 2024.
On 4 November 2024 the applicant provided a completed response to the hearing invitation confirming his attendance. He requested that the Tribunal take oral evidence from his wife via videoconference, noting that she is unable to attend in person as she has 3 young children, including a newborn baby, to care for.
On 7 November 2024 the applicant requested a further postponement stating that he does not feel mentally well, is anxious and has been experiencing difficulty sleeping which affects his concentration. He has requested to see a psychiatrist in immigration detention to obtain medication. The Tribunal advised the applicant that the Member had considered his request carefully but decided, based on the available information, not to postpone the hearing, noting that no supporting medical or other evidence had been submitted to indicate that he is experiencing mental health issues that would impact his ability to attend the hearing.
On 8 November 2024 the applicant wrote to the Tribunal stating that he has been told by a nurse that a doctor or psychiatrist is not available every day at the immigration detention centre. He is waiting to see a doctor or psychiatrist and is therefore not able to submit a medical certificate. The applicant requested further consideration of his postponement request. The Tribunal responded to the applicant on 8 November 2024 confirming that, based on consideration of the available evidence, the Member had decided not to postpone the hearing.
Prior to the hearing the applicant submitted additional documents, as outlined below:
i.Statements dated 10 November 2024 from the applicant and his wife outlining the applicant’s support of his family between September 2023 and June 2024 while residing in the community, the impact on his wife and children as a result of his re-detention in June 2024, and matters relating to the applicant’s community ties and lack of danger to the community.
ii.Birth certificate for the applicant’s youngest son, born in [month and year].
iii.Educational and training certificates issued to the applicant in 2022 and 2023.
iv.Food Business Licence issued to the applicant in February 2021 and Australian Taxation Office notice of assessment for the most recent financial year.
v.Letters dated between August and October 2024 from medical and mental health practitioners to the Department and Minister advising of the impact on the applicant’s wife of the applicant’s detention and separation from his family.
Tribunal hearing
The applicant appeared before the Tribunal in person on 11 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Relevant information from the hearing is outlined below.
Regarding his parents, the applicant advised that for the past 10 years his mother has operated a small business in [Henan] Province. He estimated it was less than 10 kms between his mother’s workplace and their home village in Shandong Province where his parents have a house. His father moves around for work; at times living with his mother in [the] County and at times in their home village. His parents are aware of his circumstances and offer him emotional support but cannot afford to support him financially.
The applicant confirmed that he fears being re-prosecuted in China and sentenced to a term of imprisonment. He read the delegate’s refusal decision but maintains that there is a real chance that he would be re-prosecuted by the Chinese authorities. He also fears that he would experience discrimination in regard to employment because of his criminal convictions and would be unable to find a job that would enable him to support his wife and children.
Regarding the issue of re-prosecution, I acknowledged that this is possible under China’s criminal law. However, I discussed with the applicant country information from DFAT, as referenced in the delegate’s decision, which assesses that re-prosecution is unlikely unless the alleged crime relates to a sensitive issue, such as a political issue, or attracted significant media attention. DFAT is aware of a very small number of reports of Chinese citizens who have murdered other Chinese citizens abroad being re-prosecuted in China.[1]
[1] DFAT Country Information Report China, 22 December 2021, p 40
I also discussed information from the UK Home Office indicating that the use of Articles 7 and 10 of the Chinese Criminal Law – being the provisions that allow for re-prosecution of overseas offenders – is discretionary and extremely rare. The view of the UK Upper Tribunal in several country guidance cases is that in the absence of particular aggravating factors, the risk falls well below the level required to engage international protection. I explained that, while each case must be considered on its individual facts, the aggravating factors are:
i.The case has generated a substantial amount of adverse publicity within China.
ii.The offender has significantly embarrassed the Chinese authorities by their actions overseas.
iii.The offence is unusually serious.
iv.Political factors may increase the likelihood of prosecution or re-prosecution, which may include the importance attached by the Chinese authorities to drug offences; and
v.The Chinese government is particularly concerned about corruption of Chinese officialdom.[2]
[2] United Kingdom Home Office, Country Information and Guidance, China: Fear of punishment on return to China for crimes committed in other countries (‘Double Jeopardy’), September 2015 with reference to UK Upper Tribunal country guidance cases: JC (double jeopardy: Art 10 CL) China CG [2008] UKIAT 00036 (14 May 2008) and YF (Double jeopardy – JC confirmed) China CG [2011] UKUT 32 (IAC) (26 January 2011)
I discussed with the applicant that none of these aggravating factors appear applicable to his case. He acknowledged that his case was not political but stated that it involved a serious crime and received media attention in Australia. He is not sure whether it was reported in the Chinese media. He believes that his case falls within the relevant provisions of the Chinese Criminal Law and he could be re-prosecuted on return.

I discussed with the applicant that I will need to assess whether there is a real chance or real risk that he will be re-prosecuted meaning a possibility that is not remote or insubstantial. While I have not made up my mind, I may not be satisfied that there is a real risk that he will be re-prosecuted given the nature of his offences. He reiterated that there is a risk of re-prosecution and if he went to prison, he could face harm due to the prison conditions.
Regarding his employment-related claims, I acknowledged that he may experience some degree of discrimination from employers due to his criminal history and that some roles require a criminal background check. However, I may not be satisfied that he would be unable to secure work of any kind. Regarding difficulties in moving outside the area of his hukou registration, the applicant stated that he would need to remain within or in close proximity to this area in order to access government services. He indicated that although his parents live outside their hukou, they must return to that area to access government services. I explained the concepts of persecution, serious harm and significant harm and that I may not be satisfied that any employment discrimination or hukou-related restrictions would amount to harm of that nature.
The applicant indicated that he understood, but unemployment is high in China and he would experience discrimination in his village which is conservative. His local community is aware of his case because his parents collected money from neighbours and friends to help pay for his legal expenses. Many of the local people in his village did not contribute because they did not agree with his behaviour.
Regarding the claims relating to his mental health as raised in the Revocation Request Submissions, the applicant agreed that his mental health has been adversely impacted by events following his conviction and this would affect his employment prospects in China. His fear of returning to China and being separated from his family has caused him depression and anxiety. While in immigration detention he has spoken to a mental health nurse and was previously taking sleeping pills. He is not currently taking any medication but experiences difficulty with sleeping. I allowed a period of 7 days following the hearing for the applicant to submit any documentary evidence regarding his mental health.
I discussed with the applicant that, while I acknowledge there are limitations with mental health care in China and a degree of societal stigma toward mental illness, I may not be satisfied that in his particular circumstances he would face harm of a nature that would satisfy the refugee or complementary protection criteria. The applicant responded that he understands but asked that the Tribunal consider his wife and children. If he is deported to China, he may not see them again. He reiterated that there is a risk that he will be re-prosecuted on return, noting that his case drew some media attention and everyone in his home village knows about his case. The Chinese authorities are likely to know about his convictions. When he recently applied for a passport with the Chinese embassy in Australia, he was questioned about why he had delayed applying and told them he had been in prison. He would need to visit the local police and update his identification cards if he returns, which may increase the risk of re-prosecution.
I discussed with the applicant the request in his hearing response for the Tribunal to take oral evidence from his wife. I explained that my role is limited to deciding whether he engages Australia’s protection obligations as a refugee or under complementary protection and does not extend to issues such as his ties to the Australian community or the consequences of his removal to China for his wife and children. The applicant advised that his wife would not be in a position to provide oral evidence relevant to the assessment of protection obligations and agreed that the Tribunal not take oral evidence from his wife.
Post-hearing evidence
Following the hearing the applicant submitted additional documents as outlined below:
i.Applicant’s Reply Submissions dated 11 September 2023 in relation to the AAT review of the non-revocation decision and AAT’s written reasons dated 12 April 2024 for the set-aside decision made on 20 September 2023
ii.Supplementary statement of the applicant dated 9 September 2023 in relation to the AAT review of the non-revocation decision and ‘Understanding and Preventing Sexual Harassment’ certificate dated 28 July 2023 issued to the applicant
iii.Recidivism assessment report dated 11 November 2021 by Clinical Psychologist, Ms [A]
iv.Psychology treatment report dated 27 March 2023 by Psychologist, [Dr B] submitted in support of the AAT review of the non-revocation decision
v.Risk assessment report dated 17 April 2023 by Consultant Psychologist, [Dr C] submitted in support of the AAT review of the non-revocation decision
vi.Minister’s s 501BA cancellation letter dated 10 June 2024
vii.Hukou registration booklet – untranslated copy and English translation
viii.Statement of ‘[Ms D]’ – a friend of the applicant and his wife – dated 9 September 2023 in relation to the AAT review of the non-revocation decision and Supplementary statement of [Ms D] dated 18 August 2024 in support of his protection visa review application
ix.International Health and Medical Services (IHMS) clinical records for the periods December 2022 to September 2023 and August to November 2024 (IHMS records)
REASONS AND FINDINGS
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 I have concluded that the decision under review should be affirmed.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Assessment of claims
I have had regard to all the evidence submitted by the applicant as outlined above. Several of these documents relate to the applicant’s revocation request and subsequent AAT review or address matters relevant to those proceedings. As discussed with the applicant, my role is limited to assessing whether he engages protection obligations as a refugee or under complementary protection. I acknowledge that the applicant’s wife and 3 minor children are Australian citizens and his removal to China would have significant consequences for his family. However, these are not relevant considerations to my assessment of whether the applicant engages protection obligations with respect to China.
Re-prosecution for offences committed in Australia
The applicant’s main claim for protection is that he faces a risk of being re-prosecuted for the criminal offences for which he was convicted in Australia. As outlined above, this is provided for under Articles 7 and 10 of the Chinese Criminal Law. Article 7 provides that the Criminal Law shall apply to any Chinese citizen who commits a crime prescribed in that law outside China. If the maximum punishment under the Criminal Law is fixed-term imprisonment of not more than 3 years, the person may be exempted from investigation for criminal responsibility. Article 10 provides that any person who commits a crime outside China, for which they should bear criminal responsibility under the Criminal Law, may still be investigated for criminal responsibility under the Criminal Law even if they have already been tried in a foreign country. If the person has already received criminal punishment in the foreign country, they may be exempted from or given a mitigated punishment.
Article 236 of the Criminal Law provides for a fixed-term imprisonment for rape of not less than 3 years but not more than 10 years. In certain circumstances the sentence for rape is fixed-term imprisonment of not less than 10 years, life imprisonment or death. These are specified as the circumstances being ‘flagrant’, involving rape of multiple women or raping a woman ‘before the public in a public place’, raping a woman with one or more persons in succession or causing serious injury or death to the victim or other serious consequences.
I acknowledge that the applicant’s conviction for rape in Australia falls within the parameters of Articles 7 and 10 of the Criminal Law. I also accept that the Chinese authorities would likely be aware of the applicant’s convictions in Australia if he were to return to China, particularly if the applicant were to be involuntarily removed from Australia. According to DFAT, Chinese authorities are likely to be aware of the behaviour of Chinese asylum seekers while they are outside of China and may know that applicants have applied for asylum.[3]
[3] DFAT Country Information Report China, 22 December 2021, p 39
I acknowledge that the applicant has a genuine subjective fear of harm on return to China for reasons of his offending in Australia. However, considering the country information outlined above, I am not satisfied that there is a real chance or real risk[4] that the Chinese authorities would exercise their discretion to re-prosecute the applicant for the offences committed in Australia if he were to return to China and therefore find that his fear is not objectively well-founded. According to the DFAT and UK Home Office guidance, the use of the double jeopardy provisions is extremely rare and in the absence of aggravating factors is unlikely to amount to a real risk of re-prosecution. Having considered the individual circumstances of the applicant’s offences, I find that none of the aggravating factors outlined above are applicable. The applicant’s offences did not involve any political element or other factors that are likely to be considered sensitive by the Chinese authorities. His offences were not committed against a Chinese citizen.
[4] Noting that the real chance and real risk thresholds have been found to be the same: MIAC v SZQRB [2013] FCAFC 33
Without undermining the serious nature of rape and sexual assault offences, I am not satisfied that the Chinese authorities would view the applicant’s offences as being unusually serious. While I acknowledge that the judge’s sentencing remarks referred to the offending occurring in a public area, I do not accept that this elevates the offences to a level that would be viewed as unusually serious by the Chinese government.
I accept that the applicant’s case generated some local media reporting. Based on the available evidence, this appears to have been limited to media sources in [State 1]. No evidence has been submitted to indicate that the applicant’s case was reported in the Chinese media or generated any degree of adverse publicity within China.
Considering the above, I am not satisfied that the applicant faces a real chance or real risk of re-prosecution for his Australian criminal offending in the reasonably foreseeable future if he were to return to China. Based on the available evidence, I find that the applicant has no other profile that would cause him to be of adverse interest of the authorities on return to China. As such, I find there to be no real chance or real risk that he will be subject to imprisonment on return to China. I am therefore not satisfied that he has a well-founded fear of persecution for this reason or that there is a real risk that, as a necessary and foreseeable consequence of his removal to China, he will suffer significant harm.
Societal discrimination due to criminal convictions
The applicant claims that he would face difficulties in securing employment in China due to discrimination from employers for reason of his criminal convictions in Australia and movement restrictions under the hukou system.
Considering the below country information, I accept that the applicant is likely to experience a degree of employment-related discrimination due to his overseas criminal convictions. Before making an employment offer in China, it is typical for businesses to conduct background checks on prospective seekers. Common requirements can be criminal records, educational background, qualifications, and references from previous employers. As a matter of law, certain managerial and corporate roles can only be performed by persons without any criminal record. Applicants for these roles are required to obtain a ‘certificate of no criminal conviction’ (CNCC) from a local public security bureau.[5]
[5] International Organisation of Employers (IOE), China: Working rule allows employers to check the criminal records of employees, Industrial Relations and Labour Law newsletter February 2022
According to a survey of almost 400 ex-offenders aged 18 to 60 from 6 cities in China, employment discrimination problems caused by criminal records mainly relate to people who want to work in ‘stable jobs in units with authorized strength’ after they are released from prison. One-third of surveyed ex-offenders reported that they encountered employment discrimination issues when trying to find jobs of this nature. Self-employed people and those employed in ‘unemployed jobs’ – which I understand to refer to casual or non-permanent roles – are generally not required to obtain a CNCC.[6]
[6] Atlantis Press, Yuting Bu, Re-employment of Ex-offenders in China: Research on Employment Discrimination and the System of Elimination of Criminal Record, Advances in Social Science, Education and Humanities Research, volume 631
I accept there to be a real chance that the applicant will experience discrimination in securing roles that require a CNCC. However, I am not satisfied that this involves serious harm of the type described in s 5J(5), including significant economic hardship that would threaten his capacity to subsist or denial of the capacity to earn a livelihood of any kind that would threaten his capacity to subsist. The courts have found the ‘capacity to subsist’ to be a high threshold that involves a threat to a person’s ability to continue to exist or remain in being.[7] The applicant is tertiary educated and has substantial work experience in Australia in [some] roles. He and his wife have operated [businesses] in Australia. The applicant confirmed to the Tribunal that his parents are supportive of him and have a house in their home village in Shandong Province. While I accept that he will experience limitations in his choice of employment, I find that the applicant will be able to secure work in China such that he will be able to subsist.
[7] SZBQJ v MIMIA [2005] FCA 143; SZIGC v Minister for Immigration and Citizenship [2007] FCA 1725
I acknowledge that while there are no legal impediments to relocation within China, the hukou system would impose some practical limitations on the applicant’s freedom to move to other areas of the country to seek employment. According to DFAT, hukou registration with the local government entitles a resident to access government services such as education or health services in that local government area. A 2012 World Bank report indicates that the hukou system regulates many social entitlements of Chinese citizens, including education, housing, utilities subsidies and social protection, including health care services.[8]
[8] DFAT Country Information Report China, 22 December 2021; World Bank, China 2030: Building a Modern, Harmonious, and Creative High-Income Society, February 2012
I accept that the applicant’s hukou registration relates to his home village in Shandong Province. He acknowledged to the Tribunal that, like his parents, he would be able to seek work outside this area provided he could return to his hukou area to access government services. I note that this is generally consistent with information in the DFAT report indicating that a third of the Chinese population live in a place other than where their residence is registered with a local government.[9] While I accept that it is very difficult to get a hukou in one of China’s major cities such as Beijing or Shanghai, according to DFAT reforms in 2019 have made it easier to get a hukou in medium-sized cities (with one to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges.[10]
[9] DFAT Country Information Report China, 22 December 2021, p 39
[10] DFAT Country Information Report China, 22 December 2021, p 39
Considering the above, I am not satisfied that the hukou system would impose limitations of a level that would cause the applicant significant economic hardship or prevent him from securing work of any kind that would threaten his capacity to subsist.
For the purposes of the complementary protection criterion, for the same reasons above I accept there to be a real risk that the applicant will experience discrimination in securing roles that require a CNCC. However, I am not satisfied that this amounts to any of the types of significant harm exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an intention on the part of a perpetrator to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable. I am not satisfied that any employment discrimination experienced by the applicant would satisfy this requirement. Further, I am not satisfied that any hukou-related restrictions would satisfy this requirement.
The applicant raised claims with the Tribunal that he would be subject to societal discrimination in his local community who are aware of his criminal offending in Australia. I accept there to be a real chance that he will experience a degree of societal discrimination, in the form of negative comments and attitudes, from those in his local community who are aware of his offending. However, I find that this does not amount to serious harm for the purposes of s 5J(4)(b), examples of which are set out in s 5J(5). Based on the available evidence, I am not satisfied it would involve a threat to his life or liberty or significant physical harassment or ill-treatment.
I accept that localised societal stigma may cause the applicant a degree of mental distress and acknowledge that serious harm may encompass mental harm. However, it must be of a serious nature, with examples being mental harm caused by the conduct of mock executions, or threats to the life of people very closely associated with the person seeking protection.[11] I find that any mental distress the applicant would experience due to localised societal stigma to not amount to the level of serious mental harm for the purpose of
[11] Revised Explanatory Memorandum, Migration Legislation Amendment Bill (No 6) 2001 at [25]
s 5J(4)(b). Further, I am not satisfied that localised societal stigma or discrimination of the nature outlined above amounts to any of the types of significant harm exhaustively defined in s 36(2A).

I am therefore not satisfied that the applicant has a well-founded fear of persecution for these reasons or that as a necessary and foreseeable consequence of his removal to China, there is a real risk he will suffer significant harm.
Mental health issues
Based on the applicant’s oral evidence and the supporting medical reports outlined above, I accept that since his convictions and separation from his family as a result of being in prison and immigration detention, he has experienced mental health issues.
The most recent psychological assessment is [Dr C]’s report from mid-April 2023, submitted in support of the applicant’s revocation request. I note the following from this report:
i.The applicant has no childhood or adult pre-apprehension mental health treatment history and has never been prescribed psychotropic medication such as anti-depressants or anti-psychotics.
ii.There is no evidence of underlying psychopathology or any type of cognitive impairment and no evidence to indicate that the applicant meets the criteria for any form of Personality Disorder.
iii.[Dr C] found that the applicant ‘appears to be struggling with an Adjustment Disorder that stems directly from the emotional stress associated with his current situation’ (detention, separation from family, concern about his visa revocation appeal). It was noted that an Adjustment Disorder is commonly considered to be a form of depression that stems from exposure to an acute stressor, such that the depressive symptomology would dissipate upon removal of the stressor. The applicant’s symptoms are stated to include periods of depressed mood, elevated anxiety, reduced appetite and sleep disturbance with elevated anxiety relating to separation from his family being the most noticeable symptom.
The views expressed by [Dr C] appear generally consistent with the November 2021 report by Ms [A] and the March 2023 report by [Dr B]. According to Ms [A]’s report, the applicant advised that he has never previously seen a psychologist and has no family or personal history of mental disorders. Ms [A] considered that the applicant was experiencing moderate levels of psychological distress, including low mood, sleep difficulties and feelings of hopelessness and helplessness, primarily due to the separation from his family. According to [Dr B]’s report, while a comprehensive mental state examination was not conducted, there were no ‘overt indicators of thought disorder’ and ‘no indicators of perceptual disturbances’. The applicant stated that he was ‘predominantly stressed and frustrated by his situation but was not experiencing prolonged periods of low mood’.
The IHMS records for the 2 periods in which the applicant has been in immigration detention refer to him experiencing anxiety, stress, mental distress and difficulty with sleep and appetite, primarily in connection with the separation from his family and concerns about the outcome of his visa status and possible removal to China.
Of the IHMS records submitted, 4 relate to the applicant’s second period of immigration detention – from June 2024 onwards. Two of these are ‘Detainee Medical Request Forms’ (MRF) completed by the applicant: the first is dated 3 August 2024 in which the applicant states that he is worried about his wife and children and frustrated at being in detention and unable to assist his family. The second MRF is dated 11 November 2024 in which the applicant states that he has been experiencing sleep difficulties, feels hopeless and anxious about his situation and requests medication for his sleep and anxiety issues. The other 2 records comprise notes of consultations on 14 August 2024 with a mental health nurse and on 12 November 2024 with a General Practitioner as outlined below:
i.The 14 August 2024 consultation notes refer to the applicant being worried about his wife and children, feeling anxious and restless and experiencing difficulties with sleep and low appetite. He declined the offer of sleep medication because of previous side-effects.
ii.The 12 November 2024 consultation notes refer to ‘heightened anxiety, poor sleep and auditory hallucinations’. The applicant is stated to have reported that ‘since in detention’ he has had intrusive voices in his head of people he thinks are talking about him; this is usually 2 voices talking about him but not directly to him and he cannot discern exactly what they are saying. He denied any self-harm ideation or harm toward others and reported that he is ‘mostly feeling anxious’ and only sleeping a few hours at a time. The applicant was prescribed a ‘low dose olanzapine’[12] that night to assist with sleep and perceptual disturbance and an appointment was booked with a psychiatrist for formal review.
[12] Olanzapine is an anti-psychotic medication used to manage symptoms of mental health conditions such as schizophrenia and bipolar disorder: Olanzapine – an antipyschotic medicine used to help symptoms of mental health conditions - NHS
I note that the 12 November 2024 consultation note is the only record of the applicant experiencing auditory hallucinations or any type of perceptual disturbance. Based on the available evidence this is the first occasion that the applicant was prescribed anti-psychotic medication. I accept that the consultation notes record the applicant’s reported symptoms. However, I have concerns regarding the timing of these reported symptoms, being the day following the Tribunal hearing at which the applicant was asked about his mental health claims and provided with the opportunity to submit further evidence. The August 2024 consultation notes include no mention of any similar reported symptoms. I acknowledge that an appointment was booked with a psychiatrist for formal review following the 12 November 2024 consultation. However, based on the available evidence, I am not satisfied that the applicant has been diagnosed with any psychotic mental health condition that would require ongoing anti-psychotic medication or treatment.
I have considered [Dr C]’s view that the applicant’s symptoms are likely to dissipate on removal of the acute stressors causing his Adjustment Disorder. These include the applicant’s ongoing detention and uncertainty regarding his visa status and possible removal to China, which would resolve as a result of his return to China. However, I accept that his removal to China would result in physical separation from his wife and children which would understandably be an acute stressor. Based on the available evidence, I accept that the applicant would continue to experience symptoms of anxiety, periods of depressed mood and difficulties with sleep on return to China.
Based on the above findings, I have considered the claims that the applicant will be unable to access mental health treatment in China and/or be subject to societal stigma and discrimination due to his mental health.
As referenced in the Revocation Request Submission, DFAT reports that while the Chinese government has increased investment in mental health services over the last decade these services remain inadequate, particularly outside the provincial capitals. A 2019 article by Chinese academics published in the BMJ General Psychiatry journal found a 17 and a half per cent prevalence of mood disorders. Despite the high prevalence of disorders, the rate of people receiving treatment was low, in part due to social stigma, and a lack of funding, mental health beds and mental health professionals. Most of those resources were found in provincial capitals in the more developed east coast of the country.[13]
[13] DFAT Country Information Report China, 22 December 2021, p 9
According to a 2020 report by The Consortium Psychiatricum, mental health services in China are mainly provided by psychiatrists, psychiatric nurses, social workers and clinical psychologists in mental health centres, by general practitioners and community nurses in community health centres and by social workers, clinical psychologists, rehabilitation therapists and occupational therapists in other government or social organizations. These services cover inpatient and outpatient treatment, hospital and community rehabilitation, health education, psychotherapy and vocational rehabilitation. Patients with mental illnesses can seek mental health services both in mental health centres and community health centre. The authors’ view is that the quality and coverage of mental health services in China ‘have been greatly improved’.[14]
[14] The Consortium Psychiatricum, Promotion of Mental Health Rehabilitation in China: Community-Based Mental-Health Services, Vol 1, No 2 (2020)
According to a June 2020 report by the China Project, Chinese authorities have responded to the calls of mental health advocates and global efforts to improve mental health care and taken steps to overhaul the country’s general response to mental health. The first major change occurred with the introduction of the National Mental Health Plan (2002–2010), which sought to establish an effective government-led mental health care system, improve services and workforce capacity, and boost the public’s understanding of mental health. In 2012 China passed the Mental Health Law which was described as a ‘landmark policy for protecting patient rights and improving mental health services’. The National Mental Health Working Plan (2015–2020) included efforts to deliver more coordinated mental health services, expand and strengthen the workforce, enhance the prevention and treatment of ‘common mental disorders and psycho-behavioral problems’, improve rehabilitation outcomes, and bolster public understanding. The Healthy China Action Plan 2019–2030 aims to improve the treatment rate of depression by 80 per cent by 2030 and continue to improve public understanding.[15]
[15] The China Project, Smith A, China’s mental health care is improving, but stigma and politics still get in the way, 11 June 2020
The above report acknowledges that despite these efforts, demand for services (estimates are that approximately 54 million Chinese people suffer from depression, and an additional 41 million suffer from anxiety disorders) continues to significantly outstrip supply and huge gaps remain in the abilities of urban and rural Chinese to access mental health services, both because services in rural areas are underdeveloped and because of the lack of affordable healthcare.[16] This is generally consistent with an October 2021 report in the China Daily regarding a study conducted in mainland China between 2013 and 2015 involving more than 32,500 people showing that only half a per cent of people suffering depressive disorders received adequate treatment. Approximately 9 and a half per cent of individuals diagnosed with different degrees of depressive symptoms used mental health services, which is significantly lower than about 57.3 per cent in the United States and other high-income countries.[17]
[16] The China Project, Smith A, China’s mental health care is improving, but stigma and politics still get in the way, 11 June 2020
[17] China Daily, Experts call for increased mental health funding, 7 October 2021
The above sources also refer to pervasive stigma surrounding mental illness in China which contributes to a reluctance to seek out treatment.
I accept that there are limitations with mental health services in China. However, considering the above country information, I am not satisfied that this amounts to persecution by the State as outlined in s 5J(4) of the Act. I accept that persons with mental health conditions in China may satisfy the definition of a particular social group in s 5L of the Act. However, I am not satisfied that the limitations in mental health services arise from systematic and discriminatory conduct by the government for the essential and significant reason of a person’s membership of this group. The above information indicates that the government has taken significant steps to improve mental health services and limitations are primarily due to resourcing and structural constraints.
Considering the above country information, I accept there to be a real chance that the applicant would be subject to a degree of societal discrimination or stigma, in the form of negative comments or attitudes, if his mental health problems became evident. However, I am not satisfied that this amounts to the level of serious harm for the purposes of s 5J(4)(b), including serious mental harm. In reaching this view, I have taken into account my findings above that the applicant’s mental health condition does not involve any psychotic symptoms and is limited to anxiety, periods of depression and sleep difficulties.
I find that the applicant does not have a well-founded fear of persecution for reasons of his mental health if he were to return to China.
For the purposes of the complementary protection criterion, I am not satisfied that limitations in mental health services in China amount to any of the types of significant harm in s 36(2A). Considering the above country information, I find that the Chinese government does not hold an intention to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable on persons suffering mental health conditions.
For the same reasons as above, I accept there to be a real risk that the applicant will experience a degree of societal discrimination or stigma in the form of negative comments or attitudes if his mental health problems became known. However, I find this to not amount to any of the types of significant harm defined in s 36(2A). I am not satisfied that there would be a perpetrator with the intention to inflict on the applicant severe physical or mental pain or suffering or extreme humiliation which is unreasonable.[18]
[18] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40])
Although not expressly raised by the applicant as a claim for protection, I have considered whether the separation from his wife and children as a result of his removal from Australia to China may amount to significant harm as defined in s 36(2A). The courts have held that separation from a person’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A).[19]
[19] SZRSN v MIAC [2013] FCA 751 at [47]–[49]; GLD18 v MHA [2020] FCAFC 2 at [36]–[58]
Conclusions
The applicant has not raised any other claims to fear harm in China and I find that no other claims arise on the accepted facts.
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 11 November 2024
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.
…