1602233 (Refugee)

1602233 (Refugee) [2016] AATA 4777 (1 December 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1602233
COUNTRY OF REFERENCE:                  Vietnam
MEMBER:David Corrigan
DATE:1 December 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 01 December 2016 at 3:18pm
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
CATCHWORDS
Refugee – Protection visa – Vietnam – Domestic Violence – Divorced women – Single women – Child born in Australia – Second marriage – Delay in protection application – Credibility issues
LEGISLATION
Migration Act 1958
Migration Regulations 1994
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] January 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Vietnam, applied for the visas [in] June 2015.
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 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants’ claims can be summarised as follows. The first named applicant (the applicant) was born in [Vietnam] in [year] and the second named applicant (the applicant child) was born in Australia in 2011. The applicant was [pregnant] with her second child when she arrived in Australia [in] June 2011. Her husband came to support her and the applicant child was born [in] 2011. [in] April 2012, she and her husband were located by Immigration officers. Her husband was removed from Australia in April 2012 which brought an end to their marriage. She started another relationship with another [man] and they moved into together [in] February 2013. In January 2015, they planned their wedding. They received advice that they needed to travel offshore to get married so they planned their travel.
The applicant fears returning to Vietnam as a divorcee and single mother. She would struggle to find adequate employment and would suffer from financial hardship. She would also be exposed to discrimination. She is fearful of her ex-husband who is aggressive and would not be offered adequate protection by the state. She also suffers from severe psychological issues because of the lengthy period of detention.
Country of reference
The applicants claim to be citizens of Vietnam. They have submitted a copy of the applicant’s passport and a copy of [an Australian] birth certificate of the applicant child that supports this. Country information indicates that any person born with at least one parent who is a Vietnamese citizen, whether that person was born in or outside Vietnam is considered by Vietnamese law to be a Vietnamese national.[1] Accordingly, I find that Vietnam is their country of nationality and that this country is their receiving country.
[1] The Australian, Nationality/Citizenship, 1 January 2013
Assessment of claims
I have considered carefully the applicant’s claims but I do not consider her to be a credible witness. I am of this view for the following reasons.
Physical abuse by ex-husband; inconsistency and omission
The applicant’s evidence involved a highly significant and fundamental inconsistency about whether she had suffered physical abuse from her ex-husband and she failed to mention such conduct when she applied for her protection visa. In her statutory declaration [in] November 2015, the applicant claimed that her ex-husband was often physically abusive towards her and that if he lost at gambling, he would often return home in anger and hit her. At the hearing, she claimed that they would have physical arguments and this occurred frequently and as much as 4-5 times per week. She said he threw a lot of punches at her face which resulted in her face being swollen and bruised. However, in her statement [in] June 2015, which accompanied her protection visa application, she stated that he was aggressive and quite violent and that he verbally threatened her many times but that she was never physically hurt but he intimidated her very much. The statement did not refer to her ever being physically assaulted by him. When these matters were put to the applicant at hearing for comment, she said that at that stage she did not remember but she did now. She also commented that she thought the interpreter did not put this in. I have considered her comments, but I do not consider that they satisfactorily explain such a major and fundamental inconsistency and failure to claim such highly significant incidents. I note that the statement says it was prepared with the assistance of interpreters and the applicant was represented by immigration lawyers. I have taken into account that victims of domestic violence can be experience feelings of shame and reluctance to talk about their abuse, however the applicant did not claim this as a reason for not doing so. I do not find it credible or plausible that she would have failed to remember such serious and frequent incidents of abuse at the hands of her ex-husband if these things had actually happened. I note her explanation that she failed to remember it is also inconsistent with her later explanation that there was a problem in interpretation and I do not accept that an interpreting error is a satisfactory explanation for the inconsistency and failure to mention such serious and frequent physical abuse. I find these matters significantly detract from her credibility.
Immigration history; unlawfulness and delay
The applicant’s immigration history including periods of unlawfulness and the long delay in applying for protection are further matters that significantly detract from her credibility. As set out in the delegate’s decision (a copy of which was submitted to the Tribunal), the applicant first arrived in Australia [in] June 2011 as the holder of a [temporary] visa with condition 8503 – no further stay – imposed on the visa. She did not depart Australia when her visa ceased and she became an unlawful non-citizen [in] July 2011. [in] April 2012, she was located by Immigration officers. She was interviewed by an Immigration officer with the assistance of a Vietnamese interpreter and was granted a Bridging E visa with Condition 8401 imposed on it which required her to report to the Department’s [office] [in] April 2012. However, she did not report as required and became an unlawful non-citizen again [in] April 2012. She remained unlawfully in the community for nearly three years until she was located by [Police] officers [in] February 2015.
In her statement [in] June 2015, the applicant claimed that as her pregnancy developed she became very big and experienced nausea and exhaustion and felt she could not travel. She claimed that she was worried that if she travelled on a plane she might endanger her child and she thought she would leave when her [Child 1] was able to travel after she gave birth. She claimed that she knew her visa would have expired and that she was very worried. She claimed she was new to this country and could not speak English and did not know how to seek help. The applicant child was born [in] 2011 and she claimed she believed that she would be legally be permitted to stay in Australia because [Child 1] was born here and that it would also be legal for her to stay here. She claimed that when she was detained [in] April 2012, Departmental officers spoke to a friend of hers and told her because she had a [Child 1] who was born here that was the reason she was released. She claimed she was told that she could leave the Department and had a visa. She claimed that at no stage was she told she had to report back to the Department and that a few officers told her she was lucky. She claimed that she thought she could stay long term. She claimed that she did not understand what type of visa she had and she genuinely thought her child had the right to stay in Australia because of [the] birth here. In her statutory declaration [in] November 2016, the applicant also claimed that she did not travel back to Vietnam because of concern for her unborn child and that after [Child 1] was born she thought she was allowed to live here. She also claimed that after she left the Department she thought she stay here long term. At the hearing, when I put her immigration history to her, she commented that her ex-husband did assault her and that he and his mother did threaten her. She said she did not understand the law at the time. Asked whether she had contacted the Department or sought advice about her visa situation, she said she did not and did not know she should.
I have considered all of the applicant’s explanations for her two long periods of unlawfulness ended only by being apprehended by Australian authorities and her long delay in applying for protection; however I do not consider they are satisfactory, credible or plausible. She was granted a [temporary] visa to stay in Australia for only one month and despite her stated concern for her unborn baby’s health, she did not approach the Department or seek advice as to whether she could stay longer. After the applicant child was born [in] 2011, she continued to reside here unlawfully and did not contact the Department or seek advice as to her visa status. I do not consider it credible or plausible that she thought she could stay here long term simply because of the birth of the applicant child. The applicant was granted a bridging visa with Condition 8401 imposed on and she did not report to the Department as she was required to. She was interviewed by Departmental officers with a Vietnamese interpreter and I do not accept that she was not told of that reporting obligation. Nor do I accept it as credible that Departmental officers would tell her or infer that the bridging visa was a long term visa or that she thought she could stay in Australia on a long term basis because of its grant or because of the birth of the applicant child.
The applicant has claimed that she was the subject of regular and serious physical abuse by her ex-husband who had returned to Vietnam in April 2012. She has also claimed that this man and his parents made regular and serious threats to kill both her and the applicant child via telephone calls to her and through friends and in-laws. She also claimed at the hearing, that her ex-husband had “quite often” slapped her [Child 2] and also 3-4 times a week used a rod to beat [him/her] whilst they were living in Vietnam prior to both her and ex-husband arriving in Australia. I have taken into account that the applicant does not speak English, but I do not find it credible that that she would not have applied for protection for such a long period up until her location and detention in February 2015 if she and her young children had faced such threats and serious acts of physical violence. I do not find it credible that she would not have sought advice from the Department or anybody else as to what her options were to seek protection and remain in Australia over such a long period if these events actually happened. I consider her immigration history viewed as a whole and her failure to apply for protection are matters that substantially detract from her overall credibility.
Physical abuse of son; lateness of claim
At the hearing, the applicant told the Tribunal that her ex-husband had “quite often” slapped her [Child 2] and also 3-4 times a week used a rod to beat [Child 2] whilst they were living in Vietnam prior to both her and her ex-husband arriving in Australia. However, despite the importance of such matters to her claims that she feared that the applicant child would be seriously or significantly harmed by her ex-husband, she did not refer to these claimed events in either her statement or statutory declaration. When this was put to her, she said that her history of assault is the truth. I have considered her comments, however the applicant was represented when she submitted these documents and I consider her failure on two separate occasions (when represented by immigration lawyers) to refer to such important events relevant to whether the applicant child may be harmed by ex-husband further detracts from her credibility.
Threats by grandparents to applicant child; implausibility
At the hearing, the applicant claimed that her ex-husband’s mother and father had telephoned her and threatened to kill her and the applicant child. Asked how often his mother made such threats, she said this occurred 3-4 times per week until she changed her number. When I put to her that I had concerns as to whether the grandparents would threaten to kill their own grandchild who was only very young, the applicant stated they were mad with her. Whilst, I accept that the grandparents may be angry at the applicant due to her divorce of the ex-husband and marriage to another man and I do not consider this to be a satisfactory or credible explanation for the claimed frequent threats to kill the applicant child who is of a very young age and hardly responsible for her mother’s conduct. I note that the applicant told the Tribunal that her [Child 2] was staying with these grandparents and that [Child 2] did not suffer from anything and that they look after [Child 2] well. I consider it implausible and not credible that the grandparents have on a frequent basis threatened to kill or harm the applicant child (who is their own grandchild) and I find this further detracts from the applicant’s credibility.
Findings re ex-husband and grandparents
Given these highly significant and fundamental concerns about the applicant’s credibility, whilst I accept they had an unhappy marriage, I do not accept her ex-husband has ever threatened her or was ever physically abusive towards her or their children. I do not accept that he ever hit their children or hit her or intimidated her or demanded money from her. I do not accept that her [Child 2] in Vietnam is too scared to tell the applicant and her mother of physical abuse from [the] father. I do not accept that her ex-husband or his parents have ever threatened the applicants by telephone or through mutual friends or other people or in any other way. I do not accept that the ex-husband in the last three months is preventing her from speaking on the phone to [Child 2]. I do not accept that the ex-husband and his family members intend to harm (or would threaten to harm) the applicants if they return to Vietnam.
In making these findings, I have taken into account the oral evidence of the applicant’s current husband. He told the Tribunal that he had seen the ex-husband hit the applicants and that if she went back her ex-husband would harm her. He said he had not spoken to the ex-husband on the telephone but he was aware of the threats he had made. However, given the highly significant concerns I have about the credibility of the applicant (which are set out above), I have given this evidence only limited weight in my assessment and I find his evidence does not overcome these highly significant concerns.
Considering their individual circumstances, I find that the applicants do not face a real chance of persecution for any reason in the reasonably foreseeable future at the hands of the ex-husband and his parents or any other family member.
Considering their individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam that there is a real risk that they will suffer significant harm on this basis.
Single and divorced woman
I accept that the applicant has divorced her ex-husband and has married another man. I have considered a range of country information including that set out in the agent’s submissions. I have also taken into account that the Australian Department of Foreign Affairs and Trade have stated in relation to women:
3.45 Article 26 of the Constitution guarantees male and female citizens equal rights in all fields, explicitly bans all forms of discrimination against women, and states that ‘men and women shall receive equal pay for equal work’. The National Assembly has also passed a range of domestic legislation including the Law on Gender Equality (2006) and amendments to the Law on Land (2003) and the Marriage and Family Law (2000) that improve the property rights of women in families.
…
3.47 Women make up almost half of Vietnam's labour force. However, some differences remain in the treatment of men and women in the workplace. Workplace laws surrounding pregnant and nursing mothers prevent women in those circumstances working the same hours as men or females without children. Women are expected to retire at 55 and men at 60. Anecdotal reporting also suggests wages and promotion rates for women are also lower. Domestic violence and sex trafficking remain a concern.[2]
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report Vietnam, 31 August 2015.

I have also had regard to a recent Department’s Standard Q&A Report concerning single mothers.[3] This reports states that country information indicates welfare payments are accessible to single mothers once mother and child have household registration and that various government and non-government support services are available to single mothers in Vietnam, including health, financial, counselling information, child care and shelters. The report states that that only limited information was found as to whether single mothers face societal barriers to employment or any other forms of discrimination but it does refer to some reports that indicate there is stigma and discrimination against women in general and single women in terms of employment, education and housing.
[3] Department of Immigration and Border Protection, Vietnam: CI161010155644170 – Single mothers – Access to social services – Employment discrimination, 18 October 2016.
The applicant’s mother and her [adult] [siblings] are living in her home area and she has a spouse in Australia who is working who could assist her. When the substance of the country information and these matters were raised with the applicant at the hearing, she said her fear was from her husband and this would create an adverse effect on the family’s welfare; however I do not accept that she has such a fear or that he or anybody else will attempt to harm her or the applicant child. Considering the country information as a whole, whilst I accept that she may suffer discrimination, I do not accept that she will not be able to obtain employment. Considering the country information as whole and her individual circumstances, whilst I accept that she would face a level of discrimination and stigma because of her membership of particular social groups consisting of “women” and “single women” and divorced women”, I find that the chance or risk that she will be seriously harmed or significantly harmed on these bases is remote.
Considering their individual circumstances, I find that the applicant does not face a real chance of persecution in the reasonably foreseeable future for her membership of these particular social groups from the state or anybody else.
Considering her individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm on these bases.
Separation from stepfather
At the hearing, the applicant stated that the applicant child considers her husband to be her father and she did not want her [Child 1] to be deprived. I have taken into account that if the applicants do not have any other legal basis to stay in Australia they will have to return to their home country and this will lead to the applicant child being separated from the applicant’s father. However, I find that such separation would not constitute either serious harm or significant harm, given the presence of her mother and other family members. Furthermore, it would not constitute persecution as this would not be any element of motivation or discriminatory conduct on behalf of any actor in Vietnam. Nor would it constitute the arbitrary deprivation of life, the carrying out of the death penalty or torture. Nor would it constitute cruel or inhuman treatment or punishment or degrading treatment or punishment and it would not involve any element of being intentionally inflicted by any actor in Vietnam.
Considering her individual circumstances, I find that the applicant child does not face a real chance of persecution in the reasonably foreseeable future from the Vietnamese state or anybody else on this basis.
Considering her individual circumstances, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant child being removed from Australia to Vietnam that there is a real risk that she will suffer significant harm on this basis.
Health of applicant
In her statement [in] June 2015, the applicant stated that she had been in detention for a very long time and had headaches during the day, cried at night and had insomnia which affected her vision. At the hearing, when asked about her current health situation, the applicant told the Tribunal that her health is normal but she sometimes gets a headache and takes Panadol and that she is forgetful but she had not sought medical help about these matters. I accept that the applicant’s evidence as to her health whilst in detention and at present; however given her description of her health as normal and that she sometimes gets headaches and is forgetful but has not sought medical treatment, I consider that this evidence does not alter any of the findings above. I consider her stated past and present health problems do not overcome the highly significant concerns I have about her credibility that are set out above.
The applicant attended the hearing and did not indicate that she was not fit to participate. She was able to respond to questions and I am of the opinion that she was able to present arguments and give evidence in a manner consistent with s.425 of the Act.
Cumulative assessment
Considering the applicants’ individual circumstances and the independent country information on cumulative basis, I find that they do not face a real chance of persecution in the reasonably foreseeable future for any of the reasons set out in s.5J(1)(a). Their fear of persecution is not well-founded as required by s.5J of the Act and therefore they are not refugees within the meaning of s.5H.
Considering the applicants’ individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Vietnam that there is a real risk that they will suffer significant harm.
Conclusions
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
David Corrigan
Member

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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…

[2016] AATA 4777

1 December 2016)

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction