1704071 (Refugee)

[2019] AATA 6334

1704071 (Refugee) [2019] AATA 6334 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1704071

COUNTRY OF REFERENCE:                  Vietnam

MEMBER:Tamara Hamilton-Noy

DATE:10 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 10 September 2019 at 12:41pm

CATCHWORDS

REFUGEE – protection visa – Vietnam – attacks by creditors – family involvement in former French military – family involvement in South Vietnam Army – fear of physical violence – fear of detention – restricted education – refusal to undertake compulsory labour – failed asylum seeker – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J, 5K, 5L, 5LA, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33

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.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 February 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be a citizen of Vietnam, applied for the visa on 1 December 2015. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia owes protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.  

7. 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.

8. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

9. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence.  If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.

   Mandatory considerations

10. 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

11. The issue in this case is whether the applicant meets any of the alternative criteria in s.36(2)(a), (aa), (b) or (c), that is whether she is 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 of such a person.  For the following reasons the Tribunal has concluded that the decision under review should be affirmed.

12. The applicant travelled to Australia on a Vietnamese passport.  She has at all times maintained that she is a citizen of Vietnam and the Tribunal accepts that the applicant is a citizen of Vietnam and has assessed her claims against Vietnam as her country of nationality.

13. In her written application for protection, the applicant stated she left Vietnam for the following reasons:

    I left my country because distrust of the judiciary and law enforcement, poor system of government, bureaucracy starting from the lowest level up to the top, the destruction of the global economy impact on the nations economy, poverty and unemployment are still big, due to such problems, as the people of Vietnam, I has been living in harsh condition so I had to borrow money from my relatives because of that I finally could not pay the debt.  I live in mental distress and fear.  Many people in Vietnam have problem like me, who borrowed money had been hit, injured and killed.

14. The applicant’s written application stated that if she returns to her country, she will get caught by creditors and could be beaten, injured or killed; they will be searching for her.   She stated she has already experienced harm in Vietnam because she received verbal threats from them to hurt her; besides that she lives in hardship because of the bad economy.  She stated that she did not try to move to another part of the country because this is a socio-economic matter and she will experience the same problem even if she moves to another place.  As to whether she thinks she will be harmed or mistreated if she returns to Vietnam, the applicant wrote in her written protection application “Yes I will live in harsh conditions, suffered discrimination for [Country 1 nationality] women”.

15. On 22 March 2017 the applicant sent correspondence to the Tribunal stating that she grew up in the poor country and at the end of the American-Vietnamese war.  She and her family lost most of everything.  They tried to escape unsuccessfully from 1975 to 1978.  They came back with nothing and started again under a new government and her parents worked hard for the family to survive.  Her family was discriminated against because they left the country and she could not go to school like other normal children.  She is wanting a chance to stay in Australia.

16. Prior to the Tribunal hearing being conducted, the Tribunal wrote to the applicant under s.424A stating that it had another protection application before it in similar terms and that the other application also claims that: the applicant left Vietnam because of problems such as distrust of the judiciary and law enforcement; that the global economy impacts on the nation’s economy; because of the conditions they had bene living in, they had to borrow money; that they could not pay the debt; that if they return, they could be beaten, injured or killed.  The letter noted that the information was relevant to the review because the similarities between the applicant’s claim and the other claim may lead the Tribunal not to accept the applicant’s stated reasons for leaving Vietnam.  The letter noted that if the Tribunal relied on this information, it may cause the Tribunal to doubt the truthfulness of the applicant’s claims and may cause the Tribunal to not accept the applicant has a well founded fear of persecution if she returns to Vietham, or that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vietnam.  This would be the reason, or part of the reason, why the Tribunal would affirm the decision under review.  The applicant was invited to comment on the information.  No response was received from the applicant prior to the Tribunal hearing.

    Tribunal hearing conducted on 21 August 2019

17. At the hearing the applicant told the Tribunal that a friend assisted her to fill in her written protection application.  As to whether she knows what her claims for protection were, she stated “not really”, and that her friend asked her some of her opinions and wrote the application.  It was prepared by a [Country 2 national] she met while working on a farm in Perth, who told her what she needed to put in her application to be a refugee.  She doesn’t know what is in the application and left it up to him.  She agreed she had signed the form to state that everything was true and correct and that she understood her visa may be refused if she had provided false information.  As to why the Tribunal would believe her evidence given this, she stated that during her time in Vietnam she was suppressed by the government because her father used to serve in the French military service and her brother also undertook military service.

18. The applicant stated to the Tribunal that she was born in Vietnam and grew up in Ben Tre province.  Her mother passed away in 2016 and her brother is still in Ben Tre, in a different house to where they grew up.  She attended school up to Grade 6 at [her town].  The Tribunal asked about “[name]”, the school indicated in the protection application and the applicant stated this is not correct; the [Country 2 national] filled this information in.  She stated that she worked in mainly labour for many families in Vietnam but couldn’t do anything officially because of her father and brother.  The Tribunal asked about whether she had worked in a [specified] business as a salesgirl, as indicated in the written protection application, and she stated this is not correct.  As to any family in Australia, the applicant stated that she had a brother who has passed away. She has [specified relatives] in [town name].

19. The applicant arrived in Australia [in] October 2012 on a [temporary] visa.  She stated to the Tribunal that her [Relative A] wanted to sponsor her to Australia, to visit her brother.  The Tribunal noted that the visa expired, and the applicant became unlawful, as of [October] 2012 and asked why the applicant had not applied for a further visa at that time.  She stated that she is not well educated and she didn’t know much English and wanted to stay.  Acquaintances said to her “just stay”, although her [Relative A] complained a lot about this.

20. The Tribunal asked the applicant why she had applied for a protection visa in December 2015 and she stated that she had received a letter from the Department asking her to make an application to stay, so she applied.  The Tribunal asked how the Department knew where she was living if she was staying illegally and she said they used her email address.  As to why she had not applied for protection earlier, she stated that she had nobody prepared to help her.

21. The Tribunal asked the applicant what she fears about returning to Vietnam and she stated that the government will realise when she returns and will put her in jail and discriminate against her.  She has no relatives to depend on to live in Vietnam.  As to why she believes the government will put her in jail, she stated that while she was preparing the application, the person said she was putting herself in a dangerous position and to think carefully before applying.  As to why the government would discriminate against her, she stated that this is because her close relatives worked for the French army and were allied with Americans.  She believes that because of this the government will put her in jail for a few months.

22. The applicant stated to the Tribunal that her father was in the French army a long time ago.  As to why this is relevant to her fears about returning, she stated that she has seen many other people in the same situation suffer the same thing.  Some went back and were put in jail and then if they applied for a job or business they would get no licence. 

23. The applicant stated that her brother was in the army for five years, and finished this in 1975.  As to why this is relevant to her fears about returning, she stated that at that time they treated her family differently.  The Tribunal asked about any harm feared upon return and the applicant stated that before coming to Australia she and her family couldn’t do anything officially because they classified her as a relative of a member of the South Vietnam Army.  Her brother escaped first and her [Relative A] wanted to sponsor her to visit him, and she couldn’t do anything in Vietnam except labouring.  In response to further questions from the Tribunal, the applicant agreed that she had had an identification card in Vietnam and that she was able to obtain a passport.

24. The Tribunal asked about the written claims in the protection application.  As to the applicant’s claim that she left because of distrust of the judiciary and law enforcement, she stated that this was not correct and was made up by the [Country 2 national].  As to the claim that she left because of the poor system of government, she stated that this is correct and that she was living in fear before coming to Australia as her brother served as a prisoner of war after the war and her family faced discrimination.  As to how that establishes a fear upon returning at present, the applicant stated that she believes when she goes back it will be the same story; the government continues to suppress people and will put her in jail; this will happen to her because she is aware of many people in the same situation who returned and were put in jail. 

25. The Tribunal asked about the applicant’s written claims that she left because of the destruction of the global economy and she stated this is not correct.  The Tribunal asked about the applicant’s written claims that she left because of the impact on the nation’s economy and she stated that this is not correct.  The Tribunal asked about the applicant’s claim that she left because of poverty and unemployment and she stated this is correct.

26. As to the written claims that she had had to borrow money from relatives and couldn’t repay the debt she stated this is not correct; she had not borrowed money.  As to the applicant’s written claims that she left because of mental distress and fear, she stated that this is correct, during that time she was anxiously waiting for the government and they often came and called her to do labouring work.  As to the written claims that other people who had problems like her who borrowed money had been hit, injured and killed, she stated that this was not correct.

27. The Tribunal asked the applicant whether she was injured or physically attacked while in Vietnam and she stated that once she refused to join labour work and they put her in jail for a month.  The Tribunal asked why this had not been included in the applicant’s written application and she stated that it was 30 years ago and she didn’t know much about the application.  The Tribunal accepts the explanation given by the applicant as to the reasons for this information not being included in the written application for protection. 

28. The Tribunal asked the applicant whether she had ever lived in [Country 1], as her written application said that “I will live in harsh conditions, suffered discrimination for [Country 1 nationality] women” and she stated no, that is not correct. 

29. The Tribunal asked about the letter the applicant had prepared for the Tribunal in March 2017 which stated that her family was discriminated against and she could not go to school like other children.  The applicant stated that at that time her family was poor and she wanted to continue her studies but had to pay a lot of money to attend school. 

30. The Tribunal noted that it had sent a letter to the applicant prior to the hearing, inviting her to comment on her application being similarly worded to another application before the Tribunal.  The applicant said that her letter is for the Tribunal to review.  If the Vietnamese government becomes aware of that, it is enough for them to say she has committed propaganda.  The Tribunal asked how the Vietnamese government would become aware of the applicant’s claims and she stated through her refugee application; her friend told her when she applied, the Vietnamese government will somehow become aware.  After the war her brother was a prisoner of war and was seen as acting against the government and was jailed for six months and tortured.

31. The Tribunal asked the applicant who she fears harm from if she returns to Vietnam and she stated the local government where she used to live will make problems for her and she fears they will arrest her when she comes back, because of living in a different country and applying for protection and this being seen as propaganda.  As to whether the local or national government would do this, she stated the government in general.

32. The Tribunal noted during the hearing that the most recent DFAT report for Vietnam indicates that police organisations exist at national, provincial district and local levels and the police are generally effective at maintaining order; that petty crime occurs regularly in larger cities and towns but violent crime remains rare; that security and law enforcement are highly visible throughout Vietnam; that there are various functioning courts and tribunals but there is some inconsistency reported in interpretation and implementation and abuse of process is reportedly widespread; that the government provides access to basic health care for all citizens in both urban and rural areas; and that education is compulsory and largely free.[1]  The Tribunal noted that this indicates overall that there are functioning arms of government and access to services in Vietnam.  The applicant stated in response that she can see this is like a theory but in reality it is not like that.

    [1] DFAT Country Information Report Vietnam, 21 June 2017 at pp6, 7, 9, 22-23.

1. The Tribunal noted that the DFAT report for Vietnam states that the World Bank describes Vietnam as a ‘development success story’; that economic reforms have transformed the country into ‘low middle income status’; and that the national poverty rate has declined significantly, although is still over 50% in ethnic minority areas.[2]  The applicant stated in response that in reality, the government suppresses people all the time; she can enjoy her freedom here.

   [2] DFAT Country Information Report Vietnam, 21 June 2017 at p6.

2. The Tribunal noted that the DFAT report states that local officials discriminate against ethnic and religious minority groups and societal discrimination against ethnic minorities continues and is persistent; and that DFAT assesses that Chinese, Hmong, Khmer and other smaller ethnic groups face a low level of official and societal discrimination, and Protestants face official discrimination and harassment.[3]  The Tribunal observed that it could not see from the DFAT report that the applicant would face discrimination because of her brother and father having served in armies a number of decades ago.  The applicant stated in response that at the moment she really doesn’t want to return, because she fears a war between China and Vietnam may happen.

   [3] DFAT Country Information Report Vietnam, p11.

3. The Tribunal stated that it accepted that some people have been detained on return to Vietnam but could not see that the applicant faces a real chance, that is more than remote, of this happening to her.  The applicant stated that she has had problems and has seen her brother suffer and that is enough for her.  The Tribunal asked the applicant what problems she had had and she stated that during the time they asked for compulsory labour she refused to go with them to work and had to look after her mother, they put her in prison for a month.  Her brother said he would replace her and attend the compulsory labour.  As to why the imprisonment had not been mentioned in her written application she stated that she doesn’t really want to go back because she has no relatives to turn to and her brother always tells her not to return.  The Tribunal accepts that this information was not provided in the applicant’s written claim because she herself did not prepare the claim form.

4. The Tribunal asked the applicant whether she could live in another area of Vietnam and she said no because her province is near a coastal area and she doesn’t think she could live somewhere else.  The same laws and discrimination apply everywhere.  Her brother told her there may be a war between China and Vietnam.

5. The Tribunal asked the applicant whether there are any other reasons she fears returning to Vietnam and she said she fears they will put her in jail and that a war between China and Vietnam may happen.  The Tribunal observed that it was required to look at the foreseeable future and there was no real chance that a war would commence and the applicant stated in response that, whether this happens or not, her brother has suffered from his past and in her life she has been very poor.

6. The applicant stated that she has no relatives left in Vietnam and wants to stay in Australia.  She volunteers in a temple and sometimes stays there.  Her health is not the best and the hospitals here are prepared to give her treatment without up-front payment.  She had an operation for a [medical condition]; she previously had an operation in Vietnam and had to sell her possessions to have the surgery there. The Tribunal asked about any ongoing health concerns and the applicant said cold and flu.

   Findings of the Tribunal

7. The applicant’s preparedness to submit a protection application with fabricated claims raises doubt about the applicant’s reliability as a witness of truth.  However, the Tribunal is prepared to accept that the applicant lived in a poor family when growing up, that she completed school in Grade 6 and worked in labouring positions, that the government put her in a forced labour camp following the end of the Vietnam war and that her father and brother had been members of the army.  The Tribunal finds that these events occurred some 40 years ago and finds that they do not establish a well-founded fear of serious harm if the applicant was to return to Vietnam in the foreseeable future, for reasons of her race, religion, nationality membership of a particular social group or political opinion.

   Written claims for protection

8. The applicant gave evidence to the Tribunal at the hearing that her written claims for protection had been fabricated by a [Country 2 national] she met while working on a farm in Perth.  Based on this evidence, the Tribunal finds that the applicant did not leave Vietnam because of the reasons raised in her written claim, namely because of distrust with the judiciary and law enforcement, bureaucracy starting from the lowest level up to the top, destruction of the global economy, the impact on the nation’s economy, because she borrowed money from relatives and was unable to repay the debt or because people like her who borrowed money had been hit, injured and killed.

9. However, having regard to these claims, which form part of the information before the Tribunal, the Tribunal considered the most recent DFAT report which indicates a functioning system of courts and tribunals, that police operate at several levels and that nationals have access to services such as health care and schooling.  This information suggests there is a functioning system of government and that the applicant could expect protection from the government for private harm feared from being unable to repay a debt to family members.  The Tribunal is not satisfied that the applicant faces a real chance of serious harm if she returns to Vietnam in the foreseeable future on the basis of the matters raised in her written claims.

   Failed asylum seeker

10. The applicant states that she fears being imprisoned on return to Vietnam as a failed asylum seeker.  The Tribunal accepts that charges are possible under Article 91 of the 1999 Penal Code, for fleeing abroad or defecting to stay overseas to oppose the people’s administration; and accepts that there have been reports of a pastor from the Ha Lang minority and a Buddhist monk being arrested on return to Vietnam under Article 91.[4]  However, DFAT assesses that while technically illegal, normal practice sees authorities treat returnees as victims rather than criminal perpetrators, with the exception of people smugglers and those whose political views may see them detained.  This has included a number of persons suspected of people smuggling returned to Vietnam in 2016.[5]  As discussed with the applicant at the hearing, while the Tribunal accepts that some persons returned to Vietnam have been detained, the applicant does not have a profile that suggests that she would be of interest to authorities if she was returned to Vietnam.  The Tribunal finds that there is not a real chance that the applicant would be detained or imprisoned upon return to Vietnam as a failed asylum seeker in the foreseeable future.

    Fear based on past discrimination

    [4] Amnesty International, ‘Viet Nam: Prisoners of conscience in Vietnam’, 4 April 2018 at DFAT Country Information Report Vietnam, p24.

The Tribunal accepts that the applicant perceives she and her family faced discrimination when she was growing up in Vietnam.  The most recent DFAT report, discussed with the applicant at the hearing, states that there is ongoing discrimination against ethnic and religious minority groups and that Chinese, Hmong, Khmer and other smaller ethnic groups face low level discrimination and Protestants face official discrimination and harassment.  The applicant does not claim to be from one of the ethnic or religious groups who face discrimination and harassment.  The Tribunal finds that there is not a real chance of serious harm if the applicant returns to Vietnam in the foreseeable future for reasons of her race or religion.

Fear based on past economic harm

The applicant told the Tribunal that she left because of poverty and unemployment and because of mental distress and fear.  The Tribunal accepts that the applicant had previously been imprisoned in a labour camp.  The Tribunal accepts that she previously had to sell possessions for an operation in Vietnam.  She does not have any significant ongoing health concerns.  The DFAT report considered by the Tribunal notes that the World Bank has described Vietnam as a ‘development success story’ with economic reforms transforming the country and a significant decline overall in the national poverty rate, and also notes that the government provides access to basic health care for all citizens in both urban and rural areas, with those in rural areas also having access to specialists in urban areas.  The Tribunal finds that there is not a real chance of serious harm if the applicant was to return to Vietnam in the foreseeable future on the basis of her past economic experiences in Vietnam and that she would be able to access health care including specialist health care if required.

Claims based on family’s military service

The Tribunal accepts that the applicant’s father participated with the French Military and that her brother participated in compulsory military service.  The Tribunal has considered the relevant country information and accepts that authorities use various means to curb political activism including applying pressure on family members of political activists.  These are, however, linked to current political activists.[6]  There was no evidence identified by the Tribunal that persuaded the Tribunal that the applicant faces a real chance of serious harm if she was to return to Vietnam in the foreseeable future on the basis of imputed political opinion arising from her father and brother’s past military service.

Cumulative claims

[6] Human Rights Watch, ‘No Country for Human Rights Activists: Assaults on bloggers and democracy campaigners in Vietnam’, June 2017, p10.

Having considered all of the applicant’s claims, individually and cumulatively, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of her imputed political opinion, her membership of a particular social group or for any other reason, if she returns to Vietnam now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution.  The applicant does not satisfy the criteria in s.36(2)(a).

Complementary protection

The Tribunal also considered the alternative criteria in s.36(2)(aa).  The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB [2013] FCAFC 33.

‘Significant harm’ is defined at s.36(2A) to include arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment and degrading treatment or punishment.

No additional matters were raised by the applicant in relation to this consideration.  The discrimination faced by the applicant decades ago in Vietnam does not amount to significant harm.  The Tribunal has found that there is not a real chance the applicant will be discriminated against, or detained or imprisoned, upon her return to Vietnam.  The Tribunal has considered the applicant’s claims cumulatively and finds that there are not substantial reasons for believing that the applicant will suffer significant harm as a necessary and foreseeable consequence of being returned to Vietnam.  The applicant does not satisfy the criteria in 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 criteria in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Tamara Hamilton-Noy
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.

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36Protection visas – criteria provided for by this Act

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(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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