1704685 (Refugee)

1704685 (Refugee) [2021] AATA 3563 (14 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704685
COUNTRY OF REFERENCE:                   Vietnam
MEMBER:David McCulloch
DATE:14 September 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 September 2021 at 11:53am
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from parents because of relationship with poor boyfriend – death of grandfather who supported financially and emotionally – credibility – voluntary returns to home country to visit parents and evidence of transfer from father’s bank account – delay in applying for protection – applied after long period as unlawful non-citizen – no appearance at hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J, 36(2), 65, 426A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 dependants.
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 and Border Protection on 14 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Vietnam, applied for the visa on 14 September 2016. The delegate refused to grant the visa.
The Tribunal invited the applicant to appear before a hearing of the Tribunal scheduled for 13 September 2021 at 9.30am. Due to the COVID-19 pandemic the hearing was scheduled to be held by video using Microsoft Teams. The invitation provided a computer link to facilitate the applicant attending the hearing by video from an internet connected computer. Alternatively, the invitation provided a telephone number to allow the applicant to dial in to the hearing.
The applicant did not respond to the hearing invitation. The applicant also did not respond to a subsequent invitation to seek to check the technology confirming that the applicant would be able to attend the hearing by video. At the time of the scheduled test, attempts were made to contact the applicant on her mobile telephone number, but the calls were not answered.
Two SMS reminders were sent to the applicant’s mobile telephone number in relation to the scheduled hearing.
At the time of the scheduled hearing, the applicant did not connect to the hearing using the computer link or by telephone. Three attempts at around the time of the scheduled hearing were made to contact the applicant at her mobile phone number but the applicant did not answer the calls.
No explanation was provided by the applicant to the Tribunal as to her non-attendance at the hearing in the manner specified.
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 themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–5LA, 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant entered Australia [in] January 2008 on a [student] visa. The applicant departed Australia on [date] April 2009 and returned to Australia on [date] April 2009 on a [student] visa. The applicant departed Australia again on [date] October 2009 and returned to Australia on [date] October 2009 on a [student] visa. The applicant indicated in questions 69 and 70 of the protection visa form that she had departed and re-entered Australia since her first arrival to Vietnam to see her parents. On 31 August 2011, the applicant became an unlawful non-citizen. On 14 September 2016, the applicant applied for a Subclass 866 protection visa.
The following information is apparent from the application for protection forms.
The applicant was born on [Date] [in] Hai Phong, Vietnam. The applicant is a Buddhist who speaks, reads and writes both Vietnamese and English. The applicant had never married nor been in a de facto relationship. The applicant’s mother, father and brother resided in Vietnam, and the applicant was not in contact with them. The applicant lists one address in Vietnam from February 2008 to February 2008 (sic). The applicant attended primary and secondary school from [year range], graduating from the [Secondary School] in [Year] and [High School] in [Year]. The applicant attended [Institution 1] to study English from February 2008 to December 2009 and [Institution 2] to study a Certificate IV of [Subject] from February 2010 to an undisclosed month in 2010. Since the applicant’s first arrival in Australia, the applicant had lived at three addresses in Sydney, NSW. The applicant had never been employed and was supported financially by her family.
The applicant provided a statement setting out her claims for protection as follows (not corrected for spelling or grammar):
l, [the applicant], born [Date], of [Address], ask the Department to understand my situation and accept me to remain permanently in Australia as my life is at risk if I return to Vietnam.
My story started as a result of my relationship with a boyfriend before going to study abroad and frankly speaking my parents did not agree to the relationship because my boyfriend was poor, did not have sufficient finances, and my parents wanted me to marry a man who has more stable finances than my boyfriend.
My boyfriend and I started a loving relationship when we were students. As we were both young we had some arguments and we broke up then got back together. During my distant relationship with my boyfriend my parents insisted and forced me to marry someone else and as a result of the disagreement and seeing me upset my grandfather agreed to send me to study in Australia as my grandfather wanted a new environment and better atmosphere for me. At the time I appreciated that my grandfather met all my school fees and living fees. During that time my parents never wanted me to study in Australia. They never accepted me as their daughter as a result of not marrying the person they want me to marry.
I came to Australia without my parents' consent and I recall I was here for approximately one year during which time my grandfather was seriously sick and I went back to Vietnam to see him on two occasions. At the moment I do not have my passport to give the Department the exact date as to when I went to Vietnam two times to visit my grandfather.
I am still suffering because after my next visit to Vietnam my grandfather passed away.
My grandfather meant a lot to me and as a result of his loss I suffered trauma because he was the person who supported me emotionally and financially.
After he died I was not able to pay my school fees in Australia. I had no money and no support from anybody.
I could not return to Vietnam because my family did not accept me rather my parents threatened me because I came to Australia against their will.
Now I admit that I stayed unlawfully in Australia because I had a genuine fear to return back to Vietnam.
I am a young girl whose life is at risk because of my family and secondly, because I could not continue my education and I ask the Australian Government to assist me and accept me as a person who has genuine fear of harm if I return to Vietnam.
I appreciate an opportunity to be given to me to attend an interview and explain my circumstances. Yes I have been in Australia since February 2008 and after I lost my grandfather I lived in fear and I was emotionally, physically and financially down.
I hope that the Department accept and understand my trauma and give me the right to stay here because I have no one to turn to.
Even now my English language is very limited and I ask for a female interpreter to attend with me and interpret for me during the interview.
Now I regret overstaying in this country unlawfully and I hope that my circumstances can be understood because my life is at risk and here I have been hiding and had fear of being caught by the Department of Immigration and lately I heard that the Department is detaining a lot of unlawful people and I did not wish to be one of those.
My circumstances are genuine and severe and as soon as I return to Vietnam and my parents become aware of my return, they will harm me and I am very weak and sick and cannot afford or endure any harm whether mental or physical.
[the applicant]
[Signature] 10.9.16
Independent information
The 2019 DFAT report on Vietnam provides the following information:
Women
3.69 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’. A range of domestic legislation supports these principles, including the Law on Gender Equality (2006), the Law on Prevention and Control of Domestic Violence (2007), and the Law on the Prevention of Human Trafficking (2017). In addition, amendments to the Law on Land (2014) and the Law on Marriage and Family (2014), improve the property rights of women in families. The 2015 review of Vietnam’s implementation of CEDAW found, however, that while Vietnam had made extensive legal commitments to guarantee women's rights on paper, it had not taken steps to enforce or protect them in practice.
3.70      Vietnam’s female labour participation rate of 73 per cent is among the highest in the world, but differences remain in the treatment of men and women in the workplace. Workplace laws surrounding pregnant and nursing mothers prevent them from working the same hours as men or women without children. The majority of women work in the informal sector, however, and do not have access to conditions such as the paid six-month maternity leave entitlement. Indeed, many women are denied access to 77 occupations: 38 categories of job are prohibited on the basis of sex, and an additional 39 are prohibited for pregnant women and women with children under 12 months. Many women find it difficult to find a job after the age of 35, and there have been recent reports of women receiving termination letters upon reaching that age. The Vietnam General Confederation of Labour has reported that women aged over 35 account for roughly half of all unemployed workers in the country.
3.71      The average monthly salary of paid workers is VND5,715,000 (AUD350) for men as compared with VND5,225,000 (AUD320) for women. The ability of women to rise to managerial ranks and access higher incomes and pensions is impacted by an earlier mandatory retirement age than that of men: women are expected to retire at 55 and men at 60. Draft revisions to the Labour Code currently before the National Assembly include a proposal to increase the retirement age for both men (to 62 years) and women (to 60 years). There are two scenarios proposed for achieving this, the slower of which proposes an increase by three months annually for men (reached by 2029) and 4 months annually for women (reached by 2036).
3.72      The aforementioned 2015 CEDAW review expressed concern over the high prevalence of violence against women and girls, and recommended the amendment of legislation to criminalise all forms of violence against women. Articles 37 and 183 of the Labour Code (2012) expressly reference sexual harassment in relation to grounds for unilaterally terminating labour contracts and prohibitions against domestic workers. The legal definition of sexual harassment is vague, however, and the ILO and other international organisations have advocated for a more precise definition in forthcoming Labour Code revisions. National-level data into the prevalence of sexual harassment is not available. Increasing media coverage of incidents and anecdotal evidence suggest that it is pervasive, including in public areas, schools, and workplaces. Although MOLISA endorsed a voluntary code of conduct on sexual harassment in the workplace in 2015, a 2018 study on sexual harassment in Vietnamese workplaces by MOLISA and the ILO found that formal complaints were usually only undertaken when the harassment constituted serious sexual assault. In March 2019, local and social media reported widely on a case of sexual harassment against a woman in an elevator, whereby the perpetrator was fined only VND200,000 (AUD12). The minimal fine sparked public outcry and criticisms of the lack of sanctions for sexual harassment in Vietnamese law.
3.73      The Penal Code defines rape (including within marriage) as an extremely serious crime for both men and women, and allows for the use of the death penalty if the victim is under 16 years old. In addition to forced sexual intercourse, the Penal Code includes ‘other sexual contacts’ and ‘forced sex crimes’ in its section on rape, while its list of prohibited acts proscribes vaginal, anal, or oral penetration of a sexual nature of the body of another person with any bodily part or object. Authorities do not release arrest, prosecution, conviction, or punishment statistics in relation to rape.
3.74      Punishments for convicted perpetrators of domestic abuse range from warnings through to probation and imprisonment for up to three years. Human rights observers report that authorities treat domestic violence as civil cases unless the victim suffers injuries to more than 11 per cent of the body. Data on domestic violence rates collected by different government agencies in Vietnam varies. For example, the Ministry of Health reported in 2016 that it records approximately 20,000 cases of domestic violence annually, with almost all victims being women. The Ministry of Justice, however, reported that one million divorce cases between 2008 and 2018 involved domestic violence, which would indicate that cases would average around 100,000 per year. These statistics likely underplay the real number of cases, with fear of social stigma or harassment from spouses or family members reportedly preventing many victims from coming forward. A 2015 NGO survey found that 59 per cent of married women had suffered physical or sexual abuse at least once in their lives, typically from a male partner or member of the family.
3.75      Popular attitudes towards domestic violence are underpinned by a number of cultural factors, including traditional views of family, marriage and ‘saving face’, and the common practice for women to live with their family-in-law. The first National Study on Domestic Violence Against Women, conducted by the government and UNFPA in 2010, found that between 30 and 60 per cent of female respondents, including young women, believed their husbands' violence could be justified under certain circumstances. Police reportedly often encourage victims of domestic violence to ‘solve their problems within the family’ rather than bringing criminal charges. The MPS has responded by developing a circular on police response to domestic violence and a police protocol for gender-responsive policing.
3.76      The government and CSOs provide support services to address domestic violence. The Center for Women and Development (primarily funded by the government, with some support from international donors) operates a nationwide domestic violence hotline, although this is not widely advertised in rural areas. It also runs three shelters for female victims of domestic violence and trafficking – two in Hanoi known as ‘Peace House’, and one in Can Tho. Women typically learn of these services through the centres’ Facebook pages or websites (though the addresses of the two houses in Hanoi are not publicly advertised), or from referrals from the police, courts or hospitals. Domestic violence victims can remain in the shelters for three months, and trafficking victims can stay for six months. The shelters also offer a follow-up program after 20 months to provide counselling, vocational training and legal aid. Although government-provided support services are substantially funded by international donors, MOLISA has committed to funding and running two shelters and six women protection centres by 2020.
3.77      The CPV-led Women’s Union has also established a number of ‘trusted addresses’, which are private homes in various communes that women can go to if they are unable to seek overnight shelter elsewhere. The Women’s Union provides training to trusted households to provide victims with legal counsel, clothing, first aid, medicine, and telephone cards. The Center for Women and Development also works with local communities to establish safe locations for victims of domestic violence, including supporting relocation to a new area. Women are able to borrow money at low interest rates (and under certain criteria, with no interest at all) from the Women’s Union, which is the leading microcredit lender with services throughout Vietnam. Despite the range of services available to women, the 2010 National Study on Domestic Violence Against Women reported that most abused women (87 per cent) never sought help from formal services (including state legal advice, hospitals and health facilities) or people in authority (including police). If they sought help, usually when the violence was severe, it was most commonly from local leaders. It further reported that about 60 per cent of women who experienced physical or sexual violence by husbands said that they had heard about the law on domestic violence. The qualitative interviews, however, showed that women did not know the details of the law and that many local authorities did not have enough knowledge about the law and domestic violence in general. The results of a second national study, this time expanded beyond domestic violence to cover violence against women and girls in private, work, and school settings, are expected to be released in March 2020.
3.78      DFAT assesses that women in Vietnam face moderate levels of official and societal discrimination on the basis of their sex. Women throughout Vietnam face a moderate risk of gender-based violence, particularly domestic violence, regardless of their geographic location or socio-economic level.[1]
[1] DFAT Country Information Report – Vietnam, 13 December 2019, pp. 30–32.
Hearing, credibility, findings and assessment

Based on the evidence before it the Tribunal finds that the hearing invitation was sent to the last address for service provided in connection with the review and in the circumstances, pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
The Tribunal is satisfied that the applicant is a citizen of Vietnam and accordingly her claims will be assessed against Vietnam.
The Tribunal hearing is the key means for the Tribunal to ask questions of applicants in relation to claims and to test credibility. There are a number of issues that the Tribunal would have needed to have been satisfied of in terms of the applicant’s responses in a hearing before being satisfied as to the substantive written claims for protection.
For example, the Tribunal would have put to the applicant in a hearing information from her student visa application to the Department, which the Tribunal has access to, which indicates that a verification of a bank deposit of an account of the applicant’s father was provided in support of the student visa application. This directly contradicts the applicant’s claims that her parents did not support or fund her travel to and study in Australia and is undermining of claims that she faces harm from them as claimed. The applicant claims financial support for study and travel instead came from the applicant’s grandfather.
Further, undermining of claims that the applicant has not been accepted by her parents and faces harm from them from the time that she came to Australia is the fact that the application form for the protection visa indicates that her return trips to Vietnam from Australia were to see her parents. This would have been put to the applicant in the hearing.
The Tribunal would have explored with the applicant the delay of a number of years in Australia before making the application for protection, including a number of years when the applicant was an unlawful non-citizen.
In the absence of the applicant attending the Tribunal hearing and the Tribunal’s inability to question the applicant and test her credibility, including on the issues stated, the Tribunal is not satisfied as to any of the applicant’s substantive claims.
The Tribunal is not satisfied that the applicant’s parents are aggrieved with the applicant as a result of a former relationship of the applicant’s, such that they have an intention or desire to inflict on the applicant serious or significant harm. The Tribunal is not satisfied that the applicant’s parents do not accept her or that they did not support her travel to and study in Australia.
The applicant’s written claims indicate that she faces harm based on not being able to continue with her education. This is not explained. In the absence of being able to question the applicant about this claim in hearing, the Tribunal is not satisfied that the applicant meets protection criteria as a result of being able to continue with her education.
The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a refugee criterion reason. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vietnam, there is a real risk of her suffering significant harm.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under 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.
David McCulloch
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.
…
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.
…

[2021] AATA 3563

14 September 2021

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies